Citation Nr: 1329858 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-05 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches, to include as secondary to PTSD. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and L.F. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1988 to November 1988 and from August 2004 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the VA Regional Office (RO) in Fargo, North Dakota. In June 2011, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At her hearing, the Veteran submitted new evidence, which relates to the issues on appeal. The Veteran specifically waived her right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). The Veteran filed a claim in August 2011 for a total rating based on individual employability due to service-connected disability(TDIU) based on PTSD. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As discussed herein, the Board is granting service connection for PTSD and major depressive disorder. A December 2011 deferred rating decision indicates that the AOJ believed that the Board should consider the issue of entitlement to a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), in which the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. However, Rice applies to rating claims, not service connection claims, which are the issues the Board currently has on appeal. Therefore, the Board does not have jurisdiction over the issue of entitlement to a TDIU and it is referred to the AOJ for appropriate action. The issues of service connection for headaches, to include as secondary to PTSD and a left knee disorder being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has PTSD and major depressive disorder that are as likely as not related to her active duty. CONCLUSION OF LAW The criteria for service connection for PTSD and major depressive disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in the only issue being adjudicated herein, no discussion of compliance with VA's duty to notify and assist is necessary. The Veteran reports that she has PTSD due to in-service sexual assault. Specifically, she reports being raped by her commanding officer while waiting to be deployed in Washington state and then being assaulted by other service members when deployed to Kuwait during her second period of active duty. See, e.g., December 2009 stressor statement; undated statement received at June 2011 hearing. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for PTSD requires medical evidence diagnosing PTSD in accordance with the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f); 4.125(a). Where the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2012); Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Veteran is not claiming that the stressor is related to combat; as noted above, she has reported being sexually assaulted in service. If a PTSD claim is based on claimed 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 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) (2012). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1R, Part IV, Subpart ii, Section D, Chapter 17, which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-399 (1998). M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states that, in cases of sexual assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. Id. Also of particular pertinence are the provisions of 38 C.F.R. § 3.304(f)(3) which state that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. The Court in Patton stated that such changes in behavior should be examined and clinically interpreted to determine whether they constitute evidence of "(v)isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment." The Veteran contends that she has a psychiatric disorder that is related to an in-service sexual assault. Throughout this appeal, the Veteran has been consistent in regards to her report of the sexual assaults, both in her contentions to VA as well as in her pertinent treatment records. The Veteran is competent to report what happened to her in service. The Board also finds the Veteran credible. She has also submitted several lay statements including employment records confirming a change in behavior following her return after her deployment to Kuwait. Furthermore, an April 2010 report of contact between the RO and the Veteran's reserve unit shows that the officer spoken to was "very quick to know when the Veteran was reassigned out of their unit (2005)." In addition to behavioral changes documented by the Veteran's daughter and employer, the Veteran has also reported that she was reassigned to a different unit following the in-service assaults. The report of contact supports the Veteran's change in unit. Additionally, the Veteran's personnel records show that although service school academic evaluation reports prior to the stressor all showed that she at least achieved course standards, an evaluation in January 2008 indicates that she failed to achieve course standards. The Veteran's failing was a departure compared to her positive evaluations. As discussed in detail below, a VA examiner found the Veteran's reports credible. Although the Veteran's service treatment records do not show the incurrence of a psychiatric disorder, nor do they show treatment for a sexual assault, the changes in unit and behavior corroborate her reported sexual assaults. Therefore, the Board concedes the Veteran's stressor of in-service sexual assaults. Post-service treatment records confirm a diagnosis of PTSD due to military sexual assault beginning in January 2010. The Veteran was afforded a VA examination in June 2010. She reported her military stressors. Following an exhaustive examination, the Veteran was diagnosed with chronic moderate to severe PTSD due to military sexual assault. She was also diagnosed with recurrent major depressive disorder. The examiner commented that the Veteran served a highly stressful term of service in Kuwait, during which time she was repeatedly victimized and harassed. She met all the DSM-IV criteria for PTSD due to that harassment. The examiner opined that the major depressive disorder was likely the result of the sexual harassment as well. Based on a review of the evidence, the Board concludes that service connection for PTSD and major depressive disorder is warranted. For the reasons set forth above, the Board concludes that the Veteran has a confirmed in-service stressor of military sexual assaults. There is also a positive medical nexus opinion by a VA examiner linking the current PTSD and major depressive disorder to the in-service stressor. Therefore, the medical evidence of record supports a finding that the Veteran's PTSD and major depressive disorder are related to her military service. Thus, after considering all of the evidence of record, specifically the positive nexus opinion from the June 2010 VA examiner, the Board concludes that a finding of service connection is warranted. Service connection for PTSD and major depressive disorder is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for PTSD and major depressive disorder is granted. REMAND Regrettably, a remand is necessary for further evidentiary development of the issues of service connection for headaches, to include as secondary to the now service-connected PTSD and for a left knee disorder. Regarding the Veteran's headaches, post-service treatment records show complaints of headaches in December 2009. The Veteran has reported that her headaches are secondary to her PTSD. In light of service connection for PTSD being granted, the Board finds that a VA examination would be beneficial in determining whether the Veteran has headaches that are related to her military service, to include being secondary to the now service-connected PTSD. As for the Veteran's left knee, service treatment records (STRs) show that she complained of left knee pain in June 1990. She reported injuring her knee during airborne training in May 1990. The Veteran was not on active duty in 1990. However, it is likely that the injury occurred during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). The personnel records that have been obtained do not confirm her duty status for May 1990. Additionally, it does not appear that her full STRs have been obtained. A report of contact in April 2010 to the Veteran's reserve unit shows that she was reassigned in 2005 and that her records would have been transferred to her unit in North Dakota. If not with her unit, they would have been sent to the National Personnel Records Center (NPRC) in St. Louis, Missouri. The Veteran could also print out her records if they were with her unit. The Veteran has submitted various STRs, but to date, no request from the RO to her reserve unit or to the NPRC have been made to ensure that the Veteran's complete STRs are of record. Furthermore, the Veteran testified at her hearing that she receives private treatment for her left knee; none of those records have been obtained. The Board finds that a remand is necessary to verify the Veteran's duty status in May 1990, obtain her complete STRs and private treatment records, and afford her a VA examination to determine if she has a current left knee disorder that is related to the in-service injury. Also, the most recent treatment records from the VA Medical Center (VAMC) in Fargo, North Dakota are dated in May 2010. Accordingly, on remand, records of any ongoing VA treatment that the Veteran may be receiving should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service headache and left knee treatment that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from private physicians and from the Fargo VAMC. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Contact all appropriate resources, to include the Veteran's reserve unit as well as the NPRC, to verify the Veteran's duty status in May 1990 and obtain her complete service treatment records. 3. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed headaches. Her claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by her and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed headaches are related to her military service, to include whether they were caused or aggravated (permanently worsened beyond normal progression) by the now service-connected PTSD and major depressive disorder [If any diagnosed headaches are found to have been aggravated by the now service-connected PTSD and major depressive disorder, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Also, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed left knee disorder. Her claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by her and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed left knee disorder is related to her military service. The examiner should address the May 1990 in-service injury and the Veteran's reports of continuing symptoms since then. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices 5. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 6. Then, readjudicate the issues remaining on appeal. If the benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs