Citation Nr: 1328302 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-13 924 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include mood disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Nancy Lavranchuk, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1986 to July 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2009 by the RO. A review of the Veterans Benefits Management Systems and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran provided testimony at hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the record. During the hearing, the Veteran's representative submitted written argument. The RO has not considered this evidence; however, the Veteran has waived consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Board has recharacterized the issue of service connection for mood disorder and PTSD to the broader issue of service connection for an innocently acquired psychiatric condition, as is reflected on the title page of this document in light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that a claim for a mental health disability 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 appeal is being 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 of the claim of service connection for an acquired psychiatric disorder is necessary as the post-service medical records include conflicting opinions as to the nature and likely etiology of the claimed psychiatric disorder. The December 2007 and January 2008 VA clinical records reflected a diagnosis of PTSD based on military sexual trauma. Although a VA psychiatric examination was provided in January 2008, it was deemed to be inadequate regarding the Veteran's claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that where VA provides the Veteran an examination in a service connection claim the examination must be adequate). Subsequently, in January 2009, a VA examiner opined that the Veteran did not meet the DSM-IV diagnostic criteria for PTSD. He commented that he had reviewed the claims folder, and reasoned that the "underlying personality characteristics" were more likely than not the primary cause of difficulties the Veteran reported. The Axis I diagnosis was that of mood disorder, NOS Under these circumstances, another VA examination is necessary in order to afford every consideration to the Veteran. Barr, 21 Vet. App. at 303; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006), and Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The Veteran asserts that he experienced a sexual assault during his period of active service. Indeed, U.S. Army Criminal Investigation Command (CID) records show that the Veteran was the victim of an assault during service. Lastly, the RO should sent the Veteran a notice letter specific to claims for PTSD based on personal assault, as required under 38 C.F.R. § 3.304(f)(5). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should undertake all indicated action to comply with the notice requirements set forth in 38 C.F.R. § 3.304(f)(5) for PTSD claims based on in-service personal assault. 2. The RO then should have the Veteran scheduled for a VA examination in order to determine the nature and likely etiology of the claimed acquired psychiatric disorder. The VA examiner(s) should acknowledge receipt and review of the claims folder. After conducting an examination of the Veteran and performing any clinically- indicated diagnostic testing, the VA examiner should specifically opine as to whether it is at least as likely as not that the Veteran warrants a diagnosis of PTSD pursuant to the DSM IV criteria. The VA examiner should reconcile the conflicting opinions of record. If the Veteran is diagnosed with PTSD, the VA examiner should opine as to the following: a) Is it at least as likely as not (50 percent or greater) that PTSD is related to the documented stressor event or another incident of the Veteran's period of active service? If a psychiatric disability other than PTSD is diagnosed, the examiner should also address the following questions: b) Is it at least as likely as not (50 percent or greater) that a diagnosed psychiatric disability (other than PTSD) is related to any event or incident of the Veteran's period of active service? The examiner should specifically address whether the confirmed incident of personal assault (as shown in a September 1987 CID report) is sufficient to support a diagnosis of PTSD. The VA examiner should also comment on the December 2007 and January 2008 VA clinical diagnoses of PTSD. A complete rationale must be provided for all opinions rendered. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his agent should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). _________________________________________________ STEPHEN L. WILKINS 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).