Citation Nr: 1331710 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-12 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for major depressive disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from March 1974 to October 1976 and from October 1976 to October 1977. In addition, he also had service in the U.S. Air Force Reserve. This matter comes before the Board on appeal of an April 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Board finds that additional development is required before the Veteran's claims of entitlement to service connection for PTSD and depression are decided. The Veteran has asserted that he has PTSD and depression as a result of numerous in-service stressors, to include personal assault. Specifically, the Veteran reported that he saw an aircraft that had crashed, resulting in the death of the pilot, and felt some personal responsibility for the pilot's death as he was an aircrew egress systems mechanic for the plane. The Veteran also reported hearing of the suicide of another crewmember and having subsequent related nightmares. He said that the danger associated with working on the flight line caused him fear that continues to this day. In addition, the Veteran reported that one of the sergeants repeatedly touched his buttocks without his consent, and that the other service members found it amusing. The Veteran stated that he reported the incident but that no actions were taken against the sergeant. He further reported that the other service members picked on him and that he complained about it "all the time" and felt humiliated and harassed. The Veteran also stated that while off duty during his time in active service, he was pushed into a lake and could not swim, and continues to experience panic attacks related to the event. To the extent that the Veteran's PTSD claim is based on an allegation of in-service personal assault, the Board finds that the claims file does not contain sufficient evidence to verify that an in-service assault occurred. Incidentally, however, the Board observes that the Veteran has not yet been provided adequate notice of the VA's duties to notify and assist with respect to a claim of PTSD based on in-service personal assault. In this respect, the United States Court of Appeals for Veterans Claims (Court) has emphasized that in claims of service connection for PTSD based on in-service personal assault or harassment, pursuant to 38 C.F.R. § 3.304(f), VA has a heightened burden of VCAA notification. See Gallegos v. Peake, 22 Vet. App. 329 (2008). Governing regulations provide that VA will not deny a PTSD claim 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 the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Any evidence received may be submitted to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. See 38 C.F.R. § 3.304(f)(5)(2013). Examples of relevant evidence of in-service assault can include records from law enforcement authorities or mental health counseling centers; and statements from family members, roommates, fellow service members, or clergy. Id. Indications of behavior changes, such as a request for a transfer to another duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, anxiety without an identifiable cause; or unexplained economic or social behavior changes following the claimed assault, may be found in these sources. Id. The Board notes that with regards to the other in-service stressors, a March 2010 formal finding was made that the information required to corroborate the stressful events was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. As the Veteran's claims are already being remanded, he should be afforded additional opportunity to provide further information about the in-service events he claimed as stressors, beyond his own statements. Additionally, the Board observes that while on active service, the Veteran received treatment at the Mental Health Clinic on Bergstrom Air Force Base, Texas, between March 1976 and April 1976. However, there are no clinical psychiatric records related to his treatment on file. Where these records may prove vital in establishing the Veteran's claims, attempts to obtain these records must be made. See 38 C.F.R. § 3.159(c)(2). Further, in his claim, the Veteran asserts that his PTSD began in 1975 or 1976 and that he began receiving treatment for depression at the Dallas VA Medical Center (VAMC) in the late 1990s. However, the earliest treatment records of record are from August 2004. Therefore, the Veteran's prior treatment records should be obtained, as well as any current relevant treatment records. See id. In an April 2011 statement, the Veteran indicated that he receives Supplemental Security Income (SSI) benefits for disability. The Board notes that SSI is a Federal income supplement program that differs from Social Security Administration (SSA) disability benefits. VA's duty to assist requires that it seek the SSA's disability determination and the medical records underlying it for Social Security disability payments only when those records are relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to the VA claim). Here, the Veteran stated he receives SSI rather than SSA benefits; however, as the case is already being remanded, efforts should be made to obtain records pertaining to his SSI disability benefits. Finally, as the case is being remanded for the foregoing reasons, the Veteran should also be afforded a new VA psychiatric examination that takes into consideration the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice informing him of the information and evidence required to substantiate a service connection claim for PTSD based on in-service personal assault. The letter should be in accordance with 38 U.S.C.A. § 5103(a), and 38 C.F.R. §§ 3.159(b) and 3.304(f), as required by law. In particular, the notice must advice the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. Then allow the Veteran the opportunity to furnish this type of evidence or to advise VA of potential sources of such evidence. A copy of this notice must be attached to the claims file. Additionally, ask the Veteran to provide further information about his other claimed in-service stressors (as discussed above), to include the location where they occurred, who was involved or witnessed the stressors, etc. 2. Make arrangements to obtain the Veteran's complete service treatment records, to include clinical psychiatric records dated from March1976 to April 1976 from Bergstrom Air Force Base, Texas. 3. Make arrangements to obtain any outstanding VA treatment records, to inlcude any relevant records dated from the 1990s through August 2004, as well as any records dated since October 2012, from the VA North Texas Health Care System. 4. Obtain copies of all documents or evidentiary material pertaining to the Veteran's receipt of SSI disability benefits. If these records are not available, a negative reply must be provided. 5. Thereafter, the Veteran should be afforded a VA examination by a psychologist or psychiatrist. All indicated tests and studies are to be performed. In conjunction with the examination, the claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should identify all psychiatric disorders found to be present, to include PTSD and major depressive disorder. In regard to EACH diagnosed condition (to include PTSD and major depressive disorder), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. If a diagnosis of PTSD is deemed appropriate, the examiner should clearly explain how the diagnostic criteria are met, to include discussion of whether any stressor(s) related to the Veteran's fear of hostile military or terrorist activity is/are deemed sufficient to have resulted in PTSD, as well as comment upon the link between any such stressor(s) and the Veteran's symptoms. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions request, it must be returned to the providing examiner for corrective action. 7. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ P. M. DILORENZO 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).