Citation Nr: 1331653 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-13 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a psychiatric disability to include post traumatic stress disorder (PTSD), major depressive disorder (MDD), MDD with psychotic features, and adjustment disorder with mixed anxiety and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to August 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In her February 2007 claim for benefits, the Veteran contends she is entitled to service connection for PTSD. The Board has recharacterized her claim more generally as one of entitlement to service connection for a psychiatric disorder to include PTSD, MDD, MDD with psychotic features, and adjustment disorder with mixed anxiety and depression. See Clemmons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (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 other information 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. REMAND The Veteran contends that her current psychiatric disorder is related to her military service. In her statements, the Veteran describes her current treatment for PTSD and asserts that she was a victim of military sexual trauma (MST) during her active service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). To substantiate a claim of service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the 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) (2013). As an initial matter, the Board recognizes that the Veteran has not been provided with specific notice of certain provisions that apply to cases involving PTSD based on allegations of personal assault. Although a June 2009 letter attempted to fulfill VA's duty to notify, it omitted certain important information regarding establishing service connection for PTSD as a result of military sexual trauma. On remand, the RO must provide the Veteran with notice of the evidence necessary to corroborate a stressor based on personal assault, pursuant to 38 C.F.R. § 3.304(f)(5). This includes informing the Veteran that she may submit evidence regarding her in service assault, including information regarding any in service behavioral changes, such as alcohol abuse, over/under-eating, and episodes of depression, panic attacks, and/or anxiety, as well as the opportunity to submit lay statements from anyone that she may have discussed such incidents with during or after service, including family members (i.e., parents, aunts, children, etc.), friends, and fellow service-members. The evidence of record reflects that the Veteran has been diligent in submitting alternative forms of evidence such as a letter from a fellow service-member and a lay statement by her daughter. However, full notice must be sent in order for legal compliance. The Board finds that a remand is also necessary to provide the Veteran with a VA medical examination to determine the nature and etiology of her asserted psychiatric disorder. VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. In the present case, the Veteran has not been afforded a VA examination addressing her current service connection claim for a psychiatric disorder. As an initial matter, the current medical evidence of record documents the Veteran was diagnosed with MDD, MDD with psychotic features, and adjustment disorder with mixed anxiety and depression contemporaneous to the filing of her claim; however, it is unclear whether or not the Veteran was diagnosed with PTSD by a qualified mental health professional in accordance with 38 C.F.R. § 4.125(a). Specifically, though the Veteran was assessed by her treating mental health counselor, a licensed social worker, as having PTSD due to MST in May 2007 and thereafter, the VA counselor further clarified that "[t]he screening tool indicates [the Veteran] has PTSD but that diagnosis is deferred to the VAH Mental health staff." In November 2007, the Veteran was assessed as having PTSD due to MST; however, the examining Advanced Registered Nurse Practitioner additionally stated that the Veteran screened negative for PTSD, thus calling into question the exact nature of the Veteran's diagnosis. While these records satisfy the first factor outlined in McLendon, they further demonstrate the need for additional clarification as to the nature and etiology of the Veteran's psychiatric disability. Turning to the second factor outlined in McLendon, the Veteran has provided lay statements and supporting evidence indicating that she may have been the victim of personal assault while in service. Specifically, the claims file contains multiple statements from the Veteran to the RO and VA mental health personnel in which she states that she was sexually assaulted in service by her First Sergeant. She further states that she and a fellow service-member reported the assault and sexual harassment to her Commander, Dr. S., who did not believe her. The Veteran states that they then spoke with the Post Commander regarding the sexual harassment, who said he would "take care of things," and that the First Sergeant was transferred to another post soon thereafter. The evidence of record additionally includes a letter from the identified fellow service-member which states that she and the Veteran were subjected to inappropriate sexual harassment from the First Sergeant and reported it to a Lt. L, but that the Lieutenant did not believe or support them at the time. Though the Board recognizes that the claims file additionally includes conflicting evidence as to whether the alleged in service stressor occurred, it finds that the evidence provided by the Veteran is sufficient to satisfy the second factor for the purpose of determining whether a medical examination is necessary. The claims file additionally includes medical records showing that the Veteran began attending a VA women's trauma group in December 2006 as well as individual therapy with a VA MST counselor in May 2007. VA treatment records from these sessions reflect that the Veteran has experienced nightmares, flashbacks, and traumatic memories about the sexual assault she experienced in service. This evidence indicates that the Veteran's psychiatric disability may be associated with service, given that the Veteran has been diagnosed with PTSD, MDD, MDD with psychotic features, and adjustment disorder with mixed anxiety and depression. Furthermore, the record indicates a sexual assault may have occurred in service, and her VA treatment records reflect that her psychiatric treatment and symptoms are related in part to her military sexual trauma. Thus, the evidence meets the low threshold for the third factor set forth in McLendon, 20 Vet. App. at 83. Lastly, as the record lacks a clear medical nexus opinion associated with the claims file from a qualified mental health examiner, there is insufficient competent medical evidence to decide the issue of entitlement to service connection for a psychiatric disorder. Thus, a remand is necessary to provide the Veteran with an examination to obtain the necessary medical opinion. It further appears that additional evidence has been received that was not previously considered by the VA medical professionals who evaluated and treated the Veteran for her psychiatric disability. Thus, on remand, the VA examiner should review the additional lay statements provided by the Veteran, her daughter, and other service-members so as to render an opinion as to whether it is at least as likely as not that the Veteran suffered a personal assault in service. See 38 C.F.R. § 3.304(f)(5); Bradford v. Nicholson, 20 Vet. App. 200 (2006). The Board additionally finds that a remand is necessary to obtain any outstanding service treatment records including clinical (inpatient) treatment records. A review of the evidence of record demonstrates that the Veteran's service treatment records are incomplete. Indeed, though the Veteran served from January 1979 to August 1986, the earliest service treatment records associated with the claims file date to February 1983. The Veteran's dental records associated with the file date back to October 1979, and show that the Veteran's name was originally listed as "[redacted]" and later changed to "[redacted]." The claims file also reflects that while in service, the Veteran went by the name "[redacted]" and that "[redacted]" was her married name. In addition, the Veteran has made credible statements detailing that she received inpatient psychiatric treatment in service at the MEDDAC Wurzberg hospital for one week sometime between January and August 1980. The Board recognizes the efforts that the RO has already expended to obtain the Veteran's service treatment records. Nonetheless, given that the evidence demonstrates that the Veteran's service medical records may have utilized a different name, as well as the fact that the Veteran has indicated she received inpatient treatment in service, the Board finds that another effort must be made to obtain her full service treatment record, to include the inpatient records from any hospitalizations, and associate those records with the claims file. See 38 C.F.R. § 3.159(c). VA's Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii directs that if it is determined that the requested service records cannot be located, the RO must make a formal finding regarding the unavailability of those documents and must inform the Veteran of the evidence that VA was unable to secure, as well as the efforts that were made to secure the evidence. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete service treatment records. Request the Veteran's service treatment records from the National Personnel Records Center (NPRC) and any other appropriate source. Request that the NPRC additionally search for the Veteran's records as listed by the name "[redacted]," and "[redacted]." If these records are not available, a negative reply must be provided and a formal finding of unavailability must be made. 2. Obtain clinical (inpatient) records of any in-service psychiatric hospitalization of the Veteran. Submit an appropriate request to the NPRC for any clinical (in-patient) treatment and mental health records for the Veteran from the MEDDAC Wurzberg hospital, from January 1980 to August 1980. 3. Obtain and associate with the claims file any outstanding VA treatment records dating from August 2009 to the present. Additionally, contact the Veteran and request she submit any private treatment records in her possession relevant to her claimed conditions and/or authorize VA to obtain those records on her behalf. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 4. Obtain and review the personnel records of the First Sergeant identified by name in the Veteran's June 2009 statement to determine, to the extent possible, whether he was transferred from his duty station within the time period of July 1979 to September 1979. Annotate in the claims file whether the records were reviewed, and if so, comment, without including any protected personnel information or copies of personnel records, as to whether the record reflects the First Sergeant was transferred within that time frame. 5. After completing the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder to include PTSD, MDD, MDD with psychotic features, and adjustment disorder with mixed anxiety and depression. The claims file, including a copy of this Remand, must be provided to the examiner, the examiner should review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner is additionally asked to accomplish the following: (a) Interview the Veteran as to the relevant history of her claimed military sexual trauma and psychiatric disorder to include MDD, MDD with psychotic features, PTSD, and adjustment disorder with mixed anxiety and depression, and include a detailed description of that history in his or her report. (b) Provide an opinion as to whether the evidence demonstrates whether it is at least as likely as not (a 50 percent or greater possibility) that the alleged military sexual trauma occurred. While review of the entire file is required, attention is invited to the following particular records: (i) The Veteran's March 2007, June 2009, and September 2009 statements providing descriptions of the in service sexual assault, her reports of harassment to fellow service-members, and her problems with "frequent night mares," hyper vigilance, and "problems with male superiors." (iii) Two March 2009 VA Reports of Contact with Mr. C and Dr. S, describing their memories of the Veteran and the time period in question. (ii) The June 2009 and July 2009 letters from the identified fellow service-member, detailing her knowledge of sexual harassment she and the Veteran were subjected to during active service and their reports of such harassment to senior leadership; (iv) A September 2009 statement submitted by the Veteran's daughter detailing her observations of the Veteran's behavior. (v) VA treatment records detailing individual mental health therapy the Veteran received from May 2007 to April 2009 in which she details her memories of the sexual assault and resulting symptoms. (c) Identify all psychiatric disorders that have existed at any time since the Veteran filed her claim of entitlement to service connection in February 2007. Specifically state whether the Veteran has a current diagnosis of PTSD. (d) If a diagnosis of PTSD is appropriate, the examiner should specify whether: (i) each diagnostic criterion to support the diagnosis of PTSD has been satisfied; (ii) any alleged personal assault found to be established by the evidence of record in the examiner's opinion was sufficient to produce PTSD; and (iii) there is a link between the current symptomatology and the in-service stressor sufficient to produce PTSD. (e) If the examination results in a psychiatric diagnosis other than PTSD (i.e., major depressive disorder, adjustment disorder, anxiety), the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not (a 50 percent or greater possibility) that any identified psychiatric disorder that the Veteran has had since she filed her current claim had onset during her active service or was caused by her active service. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After ensuring that the requested actions are completed, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant 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. 2002). _________________________________________________ BETHANY L. BUCK 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) (2013).