Citation Nr: 1328141 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-12 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in (RO) in Manchester, New Hampshire. The Board observes that, in her March 2010 substantive appeal (VA Form), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. In a July 2010 letter, she was advised that her requested hearing had been scheduled for August 2010; however, in August 2010, she advised the RO that she would not be able to attend her scheduled Board hearing. Therefore, the Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. The Virtual VA file contains an August 2013 brief from the Veteran's representative, a copy of which has been associated with the paper claims file. The Virtual VA file does not contain any other information that is not physically of record. The Veteran has expressly filed a claim of service connection for PTSD. However, VA treatment records include additional psychiatric diagnoses of panic disorder with agoraphobia and depressive disorder. In view of these diagnoses, the claim has been characterized more broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that she is entitled to service connection for an acquired psychiatric disorder, to include PTSD, as a result of military sexual trauma (MST), in particular, eight or more rapes that occurred on the U.S.S. Cape Cod that were never acknowledged. See June 2008 application for benefits. VA clinical records reflect an assessment of PTSD secondary to MST. See eg., January 25, 2008, VA mental health outpatient treatment report. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection for PTSD requires: 1) a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); 2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and 3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f)(5). VA recognizes that, because a personal assault is a personal and sensitive issue (which may, at least to some degree, be an explanation for the Veteran's non-response to the June 2008 and September 2008 letters from the RO requesting more detail as to her alleged stressors), many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). 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). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned 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 may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Here, the Veteran has been diagnosed with PTSD as a result of the alleged MST events on the U.S.S. Cape Cod. The service personnel records confirm that the Veteran served on this vessel from August 1987 to July 1988. Additionally, such records show that she was subject to two disciplinary actions during this period that that Veteran's representative asserts document the type of "behavioral changes," corroborating an in-service sexual assault as described by 38 C.F.R. § 3.304(f)(5). The Board also notes that the Veteran's "Enlisted Performance Record" documents deterioration in the Veteran's work performance, in terms of her overall evaluation, in the final months of her duty aboard the U.S.S. Cape Cod. Given the evidence and assertions discussed above, the Veteran should be afforded VA examination with a VA psychiatrist or psychologist to determine whether she meets the criteria for a PTSD diagnosis and, if so, whether there are any indications (behavior changes, etc, including after her military service) that she was sexually assaulted while in the military, as another means of trying to corroborate her alleged MST. In other words, if the VA examiner determines the Veteran suffers from PTSD or other psychiatric disorder, he or she should then determine whether the Veteran's alleged sexual assault in service is the basis for such diagnosis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4). Although the Board must make the ultimate finding of fact concerning the occurrence of a stressor, VA regulations as mentioned provide that VA adjudicators may submit any evidence it receives to an appropriate medical or mental health care professional for an opinion as to whether it indicates that a personal assault occurred resulting in PTSD. 38 C.F.R. § 3.304 (f)(5). The Board also notes that, according to the special provisions of 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives concerning the alleged MST to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. That is to say, in these types of cases there is an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that after-the-fact medical nexus evidence cannot, as a matter of law, corroborate the occurrence of a noncombat stressor in service. Indeed such evidence can corroborate the occurrence of a noncombat stressor when, as here, the claim is predicated on MST. See Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998). In addition, as the Veteran indicated in her March 2010 substantive appeal that there may be additional VA clinical records that have not been reviewed, and requested a review of such records prior to the adjudication of her claim, any pertinent VA clinical records that have not been obtained, to include those from the Manchester, New Hampshire, VA Medical Center dated from November 2008 to the present, should be associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of VA psychiatric treatment that have not been obtained, to include those from the Manchester, New Hampshire, VA Medical Center dated from November 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. Such a determination should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Upon completion of the above, schedule the Veteran a VA examination to be conducted by a psychiatrist or psychologist so as to determine the nature and etiology of her acquired psychiatric disorder(s). The claims folder contents must be made available to the examiner for review. Following interview of the Veteran and review of the claims folder, the examiner is requested to provide opinion on the following questions: a) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-IV criteria. b) If the examiner finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressors are linked to the PTSD diagnosis. If the stressor involves an MST event, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. The examiner is specifically asked to comment upon the significance, if any, of the disciplinary actions and reduction in performance evaluation during the period of time the alleged rapes occurred, as well as any other lay testimony as to behavioral changes after the claimed incident. c) Provide an opinion as to whether it is at least as likely as not (probability of 50% or greater) that any currently diagnosed psychiatric disorder other than PTSD was first manifested in service and/or is causally related to event(s) in service. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, 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, with an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).