Citation Nr: 1327185 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-15 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and major depressive disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. As noted on the title page, the Board is recharacterizing the Veteran's PTSD claim to include other psychiatric disorders that have been diagnosed, i.e., a depressive disorder. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding 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). The Veteran testified before the undersigned Veterans Law Judge in May 2011. A transcript of the hearing is of record. 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 on her part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. The Board finds that additional development is required to satisfy VA's obligations under the VCAA. VCAA Notice- The Veteran has not received proper notification of the requirements for a claim for service connection for PTSD based on in-service personal assault. In Gallegos v. Peake, 22 Vet. App. 329 (2008), the United States Court of Appeals for Veterans Claims (Court) held that in cases of alleged sexual assault VA must first inform the claimant that he or she may submit alternative forms of evidence, that is, evidence other than service records, to corroborate his or her account of an in-service assault, and suggest potential sources for such evidence. Then, VA must assist him or her in the submission of alternative sources of evidence, by providing additional time to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on his or her behalf. The Court has emphasized that, in claims of service connection for PTSD based on in-service personal assault pursuant to 38 C.F.R. § 3.304(f), the VA has a heightened burden of VCAA notification. Id. A remand is required for the RO to provide the Veteran with such notice. VA Treatment Records- The claims file reflects that the Veteran has received medical treatment from the Tennessee Valley Healthcare System. The Veteran has indicated that she has been treated at both the Nashville and Murfreesboro locations. Moreover, she has indicated that she has been treated at the Clarksville, Tennessee Community Based Outpatient Clinic. However, the claims file only includes treatment records from the Nashville Campus dated through February 2010. Any additional outstanding records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the RO should obtain and associate with the claims file all outstanding VA records. Social Security Administration (SSA) Records- VA treatment records reflect that the Veteran has been awarded disability benefits from the Social Security Administration. Records associated with this determination have not yet been obtained. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As these records may contain pertinent information as to the Veteran's appeal, they must be obtained. VA Examination- The Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is based on allegations of personal assault in service. Specifically, the Veteran asserts that she was sexually assaulted in service. She states that she became pregnant as a result of assault. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). Until recently, a non-combat veteran's lay testimony, by itself, was typically not enough to establish the occurrence of the reported stressor. However, the Board notes that a recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the veteran's fear of hostile military or terrorist activity. It is necessary that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. See 75 Fed. Reg. 39,843-39,852 (Jul. 13, 2010) and 75 Fed. Reg. 41,092 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). However, as the Veteran's alleged stressor is not related to hostile military or terrorist activity, these regulatory changes are not for application in this case. The Veteran's service treatment records do not demonstrate treatment for or complaints associated with psychiatric problems. At her separation examination, her psychiatric clinical evaluation was normal. There is also no clear indication in the Veteran's personnel records that a personal assault occurred. The Veteran's uncorroborated testimony, with respect to her personal assault is not sufficient to verify the stressor set forth in this case. The Board recognizes that the present case falls 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 alleges. See, e.g., Patton v. West, 12 Vet. App. 272 (1999). In any event, the Board acknowledges that the relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5) (2012). 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. 38 C.F.R. § 3.304(f)(5) (2012). VA manual M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.n. 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)(5). 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. In addition, 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). Based on the foregoing, the Veteran should be scheduled for a VA psychiatric examination by a medical professional with appropriate expertise to determine the likelihood that the alleged personal assault during service occurred, and if so, whether any current acquired psychiatric disorder is related to a personal assault incurred in service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA notice letter pertaining to the claim for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The letter should include the criteria necessary to support service connection for an acquired psychiatric disorder other than PTSD and service connection for PTSD, to include based on in- service personal assault or harassment. 38 C.F.R. § 3.304(f). In particular, the notice must advise the Veteran that evidence from sources other than her service records or evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. Allow the Veteran the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 2. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who rendered psychiatric treatment to her. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with her file. Regardless of whether or not the Veteran responds, obtain all outstanding treatment records from the Tennessee Valley Healthcare System (Nashville, Murfreesboro) and the Clarksville, Tennessee Community Based Outpatient Clinic. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. Request a copy of the decision awarding SSA disability benefits to the Veteran and of the medical records used in support of that decision. All available documents should be associated with the Veteran's claims folder. 4. Following the development set forth above, schedule the Veteran for an appropriate VA examination. Following an examination of the Veteran, review of the relevant service records and other evidence in the claims file, the examiner is asked to opine whether it is at least as likely as not (a 50 percent probability of greater) that the Veteran's claimed in-service personal assault, resulting in a pregnancy, occurred. If the psychiatrist is of the opinion that a personal assault occurred, the psychiatrist should then state whether it is at least as likely as not (a 50 percent probability of greater) the Veteran has PTSD, or any other acquired psychiatric disorder, as a result of such assault in service. If the examiner determines that there is inadequate evidence to support the occurrence of the in-service personal assault or determines that the clinical evidence does not support a diagnosis of PTSD or psychiatric disorder due to the assault, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder had its onset in service or is otherwise etiologically related to the Veteran's service, including any incident of service. The claims file must be made available to and reviewed by the examiner. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner should note and consider 1) the Veteran's alleged service stressor, which is found in written statements and in her Board hearing transcript; 2) service records; and 3) medical reports and statements of record. A complete rationale should be provided for all requested opinions. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 5. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ BARBARA B. COPELAND 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).