Citation Nr: 1327506 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-19 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (to include posttraumatic stress disorder (PTSD)) due to personal assault. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from August 30, 1978 to September 26, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togas, Maine. The claim is now properly before the RO in Baltimore, Maryland. 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 While the claim of entitlement to service connection for PTSD was still pending, the Veteran filed a "new claim" of entitlement to service connection for PTSD, anxiety, bipolar disorder, cyclothymia and chronic depression. The Baltimore RO, in an August 2011 rating decision, addressed this "new claim" as a claim to reopen a claim of entitlement to a psychiatric disorder. Additionally, the June 2012 Supplemental Statement of the Case (SSOC) addressed the issue on appeal as a new and material evidence claim. Thus, the February 2010 SSOC is the last readjudication of the correct issue on appeal by the RO, and does not take into account medical and lay evidence presented after February 2010. As such, the RO must review this additional evidence and readjudicate the claim before it can be returned to the Board as the Veteran has not waived his right to AOJ review. With respect to a claim of entitlement to service connection for PTSD based on an alleged personal assault, 38 C.F.R. § 3.304(f)(5) provides 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 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. 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). While the October 2007 notification letter included some information regarding the evidence that can establish service connection for PTSD based on personal assault, the notice did not include the list provided by the regulations. On remand, the Veteran must be advised of the evidence which may support his claim. The claims file contains VA mental health treatment records which include diagnoses of PTSD, depressive disorder and an anxiety disorder. The Veteran has reported that he was sexually abused by a priest from age 7 to 16, and that he suffered from PTSD prior to service which was aggravated due to being raped by his drill sergeant. Mental health records note that the Veteran was subject to abuse in a prior relationship in addition to the reported sexual assault he underwent prior to service and in-service. His records also reflect that he may have had substance abuse problems. The Veteran has not been provided a VA examination. Due to his diagnosis of PTSD, notations of in-service assaults, possible history of substance abuse, and a history of an inability to maintain employment despite an education, the Board finds that the low threshold requirement for a VA examination has been met, and this case must be remanded to provide the Veteran with a VA examination relating to his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further notes that "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). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) 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 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). 2. Associate any outstanding VA treatment records dated from August 2010 to present, and prior to February 2006 with the claims file. 3. 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 and military personal assault actually occurred, and if so, whether he has an acquired psychiatric disorder, to include PTSD, that is the result of his reported stressors. The complete claims folder and access to Virtual VA 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 specific opinions as to: (a) Whether it is at least as likely as not (a 50/50 probability or greater) that the claimed military assaults occurred; (b) Whether it is at least as likely as not the Veteran has a current acquired psychiatric disorder that is related to the assaults; otherwise had its onset in service, or is etiologically related to service. (c) As the Veteran has indicated he had childhood trauma, additionally determine whether there is clear and unmistakable evidence that the Veteran suffered from a psychiatric disorder prior to service. (d) If the examiner determines that the Veteran clearly and unmistakably suffered from a psychiatric disorder prior to service, then is there clear and unmistakable evidence that his psychiatric disorder was NOT aggravated by 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. 4 Then, review all evidence added to the claims file after the February 2010 SSOC and readjudicate the Veteran's claim. If the claim remains denied, he should be provided an additional SSOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review 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).