Citation Nr: 1332568 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-01 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from March 1982 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the psychiatric claim on appeal has been developed as a claim for service connection for PTSD. However, the Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the claim on appeal has been recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD. In July 2013, the Veteran testified at hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's claim. A review of the documents in the paperless claims files reveals a transcript of the July 2013 hearing. However, the remaining documents are either duplicative of the evidence in the paper claims file or 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has contended that her current psychiatric disorder is related to two incidents of military sexual trauma during service. Specifically, she has reported that she was raped by her platoon sergeant in Okinawa, Japan, in the summer of 1983, and that she was raped by a male dispatcher when she was the overnight duty driver for the motor transport unit in Yuma, Arizona, in the summer of 1984. See March 2008 stressor statements. Additionally, she has related that she was physically assaulted by an acquaintance in Okinawa and stated that the incident was investigated by the Naval Investigative Service (NIS) (now the Naval Criminal Investigative Service (NCIS)). Id. During a January 2009 VA PTSD examination, the Veteran indicated that she did not report the military sexual trauma in service, but she asked a friend to "beat [her] up" so she could get away from her platoon sergeant. She related that she was investigated for "malingering" after this incident. In a July 2008 statement, the Veteran reported that the NIS investigation "led to a write-up for malingering but it was dropped before the nonjudicial punishment was held due to lack of supporting evidence." In August 2008, the RO sent a request to NCIS for any NIS investigative reports dated from 1983 to 1984. The RO noted that the Veteran claimed that she was raped by her platoon sergeant during the summer of 1983 at Camp Butler, in Okinawa, Japan, and that her service treatment notes showed she was personally assaulted in November 1983. In September 2008, NCIS responded that they had no record of any NCIS investigation for the incident. In March 2009, the RO made a formal finding that the NCIS investigative reports were unavailable. The Veteran was notified of the RO's attempts to obtain the records, and she was provided the opportunity to send any records in her possession. On remand, the RO/AMC should make further attempts to obtain any NIS investigative reports pertinent to the claimed incidents and to obtain any documentation of a "write-up" for malingering and any documents prepared for nonjudicial punishment proceedings in service. The Board also notes that the Veteran was scheduled for a VA examination in September 2012, but the record indicates that she failed to appear for that examination. During the July 2013 hearing, the Veteran's representative contended that the VA examination was unnecessary because VA psychologists had diagnosed the Veteran with PTSD and depression related to military sexual trauma. However, a review of the record shows that the VA treatment notes include diagnoses of PTSD related to both childhood sexual trauma and military sexual trauma. Additionally, during a January 2009 VA PTSD examination, the examiner diagnosed the Veteran with a personality disorder. The examiner also noted that the Veteran gave conflicting historical accounts, such as denying childhood sexual abuse when the record showed that she had previously claimed she was sexually abused as a child. Additionally, in October 2006, December 2006, and November 2007 VA treatment notes, the Veteran reported that she was treated by a private provider for her psychiatric disorder. To date, there is no indication that the records have been submitted by the Veteran. During the July 2013 hearing, she indicated that she had not submitted any private treatment records because her VA treatment notes had evidence of a nexus between her claimed psychiatric disorder and her claimed military sexual trauma. Therefore, on remand, the RO/AMC should seek to obtain those outstanding private treatment records. The Board reminds the Veteran that the "duty to assist is not always a one-way street," and that she has an obligation to actively participate in the retrieving of any information pertinent to her claim, to include attending scheduled VA examinations and identifying relevant records. She is expected to cooperate in the efforts to adjudicate the claims, and her failure to do so would subject her to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Pursuant to 38 C.F.R. § 3.655 (2012), failure to appear for a scheduled VA examination and/or identify relevant records may detrimentally affect the claim because the subsequent adjudication will be based solely on the evidence of record Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take all appropriate steps to verify the Veteran's claimed military sexual trauma stressors and the November 1983 physical assault documented in the service treatment notes. This should include all possible attempts to obtain any evidence of an NIS investigation and any documentation prepared for nonjudicial punishment in service. The Veteran has provided information suggesting that the first claimed military sexual trauma occurred in the summer of 1983 in Okinawa, Japan, by her platoon sergeant (identified by name in the March 2008 stressor statement). She provided information suggesting that the second claimed military sexual trauma occurred in the summer of 1984 in Yuma, Arizona, by a male dispatcher at the motor transport unit. The Veteran provided information that she was investigated by NIS following the November 1983 physical assault documented in her service treatment notes. She indicated that she was written up for malingering and she faced nonjudicial punishment, but the proceedings were terminated because there was not enough evidence to proceed. 2. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her claimed psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding pertinent medical treatment records from any private providers, to include, but not limited to, Dr. S. (as identified in an October 2006 VA mental health emergency department treatment note) and records from a May 2006 psychiatric hospitalization at Norfolk General Hospital. A specific request should also be made for any outstanding VA medical records, including any treatment dated from February 2012 to present. 3. After obtaining any additional records identified by the Veteran, she should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to identify all current psychiatric disorders. He or she should specifically indicate whether the Veteran has a personality disorder, a depressive disorder, and/or PTSD. For each diagnosis identified other than PTSD, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to her military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) Regarding PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including personal assault. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO/AMC should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).