Citation Nr: 1332742 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-39 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including bipolar disorder, depression, schizophrenia, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to April 1985. She appealed to the Board of Veterans' Appeals (Board/BVA) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bipolar affective disorder with depression. During the pendency of the appeal, the RO in Indianapolis, Indiana, assumed jurisdiction and subsequently certified the appeal to the Board. As the record reflects several diagnosed psychiatric conditions, the claim has been expanded to include these additional diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board previously remanded this claim in March 2011 to reschedule a February 2011 Board hearing since the Veteran had provided good cause for failing to attend that scheduled hearing. But while a new hearing was scheduled for in October 2011, she cancelled that hearing and withdrew her hearing request entirely. 38 C.F.R. § 20.704(e) (2013). The Board later denied her claim in a February 2012 decision. She appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a Joint Motion, the Court vacated the Board's decision denying this claim and remanded this claim back to the Board for further development and readjudication in compliance with directives specified. To comply with these directives, the Board, in turn, is again remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. There is just one other preliminary point also worth mentioning. Also in the Board's prior February 2012 decision, the Board remanded an additional claim of entitlement to service connection for ulcers. And in a March 2013 rating decision since issued, on remand, the AMC granted service connection for gastroesophageal reflux disease (GERD). This represents a full grant of the benefit sought on appeal. Therefore, that claim is no longer before the Board, as a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to no longer exist. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). If she disagrees with the 10 percent initial rating and/or March 7, 2007, effective date assigned for this now service-connected disability, she has to file a separate appeal of these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Thus, only her claim for an acquired psychiatric disorder remains in dispute. REMAND As specified in the Joint Motion for Remand (JMR), additional development is necessary to fully and fairly adjudicate this remaining claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that she was abused by her drill instructors during boot camp, and that they were court-martialed for their conduct. She specified that one of them was "Sgt. [redacted]." She noted that she began drinking as a result and got into trouble because of it. See October 2007 Statement in Support of Claim. To date, no attempt has been made to obtain records of this court-martial to corroborate her account of abuse. Therefore, the claim must be remanded so these records can be investigated and obtained, if still available. She also needs to be provided additional opportunity to submit the types of evidence listed in 38 C.F.R. § 3.304(f)(5) that may tend to support her claim of this type of assault during her service. See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Veteran alleged that his sergeant had kicked him down a set of stairs). As well, after the above development has been completed, she should be afforded a VA compensation examination to determine the exact nature and etiology of her acquired psychiatric condition. To that end, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has observed that 38 C.F.R. § 3.304(f)(5) specifically states that an after-the-fact medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). In this case, the Veteran's service records contain some findings which may be relevant to a claim of personal assault in service. In August 1984, the Veteran underwent an educational course under the Navy Substance Abuse Prevention Program. She was receptive to the information discussed and returned to duty with no further action. Records dated November 1984 noted that the Veteran was disenrolled from Drill Instructor School for temperamental unsuitability. Her performance was characterized, at times, by a lack of attention to duty, enthusiasm, and bearing. Her relative inexperience in the Marine Corps (3 years) may also have been a factor in her below average performance. Additional records dated February 1985 show the Veteran was punished for a 4 day unauthorized absence. Therefore, in addition to obtaining a history from the Veteran regarding her traumatic experiences in service, the examiner should also review the claims file, including any additional evidence obtained as a result of this remand, and offer an opinion as to whether the claimed in-service assault occurred. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), Department of the Navy, and any other appropriate records custodian to obtain records of a court-martial of the Veteran's drill instructors during her period of basic training, to include records relating to a "Sgt. [redacted]." Her personnel records show that she underwent basic training at Parris Island from September 9, 1981 to November 10, 1981. Her unit was designated by the following notations: RUC 32172, MCC 016. All attempts to obtain these records, including any negative responses, should be documented in the claims file. 2. Send the Veteran a VCAA notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation of the type of evidence that may be relevant in corroborating the occurrence of a stressor in claims for service connection for PTSD resulting from a personal assault in compliance with 38 C.F.R.§ 3.304(f). Specifically, the letter should inform the Veteran of types of evidence from sources other than the Veteran's service records that may corroborate the Veteran's account of the stressor incident. 3. After the above has been completed, schedule the Veteran for a VA psychiatric examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has a psychiatric disorder, to include PTSD, which is related to her period of active service, to include in-service personal assault. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised: * The Veteran contends she experienced an unspecified form of abuse at the hands of her drill instructors during basic training, which occurred from September 1981 to November 1981. * Service personnel records show that in August 1984, the Veteran underwent an educational course under the Navy Substance Abuse Prevention Program. She was receptive to the information discussed and returned to duty with no further action. * Service treatment records dated October 1984 show the Veteran was in drill instructor school and had much stress. The next day she reported that she did not want to be a drill instructor, and she disclosed that she had been abused by her mother, an alcoholic, as a child; * Personnel records dated November 1984 show the Veteran was disenrolled from Drill Instructor School for temperamental unsuitability. Her performance was characterized, at times, by a lack of attention to duty, enthusiasm, and bearing. Her relative inexperience in the Marine Corps (3 years) may also have been a factor in her below average performance. * In February 1985, the Veteran was punished for a 4-day period of unauthorized absence. * Private treatment records dated July 1987 show the Veteran was treated for alcohol abuse. * VA records dated June 1998 and private records dated January 1999 reflect reports of childhood physical and sexual abuse. * VA records dated August 21, 2001 reflect a diagnosis of PTSD, and the treating physician noted complaints of nightmares and flashbacks related to past sexually traumatic events. Additional records also dated August 21, 2001, reflect complaints of flashbacks and nightmares related to unspecified childhood trauma. Yet more records from that date show the Veteran reported a history of sexual trauma in the military. * The Veteran's records collectively reflect diagnoses of PTSD, schizophrenia and schizoaffective disorder, bipolar and bipolar affective disorder, and depression. * In addition to the above, the claims file may contain additional records obtained subsequent to this Remand. c. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) What are the Veteran's current psychiatric conditions? (ii) It is at least as likely as not (a 50 percent probability of greater) that the Veteran's claimed in-service personal assault (being abused by her drill instructors during basic training) occurred? (iii) If the Veteran is currently diagnosed with PTSD, and if it is at least as likely as not that the in-service personal assault occurred, is it at least as likely as not PTSD related to the in-service assault? (iv) If the Veteran is diagnosed with psychiatric conditions other than PTSD, the examiner should state whether it is at least as likely as not that any condition had its onset in service or is otherwise etiologically related to the Veteran's service, including any incident of service. An explanation must be provided for any opinion or conclusion expressed. 4. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 5. After the requested development has been completed, readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before returning the case to the Board. 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). 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). _________________________________________________ KEITH W. ALLEN 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).