Citation Nr: 1333745 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-30 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD. In May 2013, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. 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, essentially, that he has a psychiatric disorder, to include PTSD, that is related to or had its onset during his period of service. He specifically maintains that he has a psychiatric disorder, to include PTSD, as a result of sexual abuse during his period of service. He reports that he was sexually assaulted on two occasions in boot camp. He also indicates that another incident occurred when he was stationed in Norfolk, Virginia, and that there were other incidents as well. The Veteran maintains that he reported such incidents to shore patrol and to a chaplain. He states that the chaplain sent him to a psychiatrist who diagnosed him with a passive-aggressive personality which resulted in his discharge. He reports that he also told the psychiatrist about the sexual assaults. The Veteran is competent to report having psychiatric problems in service and psychiatric problems since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran served on active duty from June 1969 to March 1970. His DD Form 214 indicates that he had no foreign and/or sea service. The Veteran's service personnel records show that he was not awarded decorations evidencing combat. Such records reflect that the Veteran was administratively discharged due to unsuitability based on psychiatric evaluation with a diagnosis of a passive-aggressive personality (severe). A February 1970 service treatment record entry noted that the Veteran had a passive-aggressive personality. The examiner reported that the Veteran had a total lack of insight and that he stated that he was pressured into joining the Navy. It was noted that the Veteran indicated that he decided after one hour in boot camp that he wanted to be discharged. A February 1970 consultation report noted that the Veteran had approximately eight months of active duty and that he was seen while stationed at a barracks at the request of a physician. It was noted that the Veteran was referred due to poor adjustment to the Navy. The examiner reported that the Veteran had no previous offenses of the Uniform Code of Military Justice. The examiner indicated that the Veteran was very angry and rebellious. The examiner also stated that the Veteran hated the Navy and ships, and that he resented taking orders. The Veteran did not want to work and that he did everything possible to avoid work. The Veteran complained of constant feelings of anger and tension, as well as having insomnia, a poor appetite, and being involved in frequent fights. The diagnosis was a passive-aggressive personality (severe). The examiner recommended that the Veteran be administratively discharged. A March 1970 separation examination report included a notation that the Veteran's psychiatric evaluation was normal. Post-service treatment private and VA treatment records show treatment for variously diagnosed psychiatric disorders, including PTSD; PTSD with depressive symptoms secondary to PTSD; a psychosis, not otherwise specified; and a delusional disorder, not otherwise specified. Such records include references to the Veteran's reports of sexual abuse during service. For example, a June 2013 statement from a VA psychologist indicated that the Veteran was participating in counseling related to his diagnosis of PTSD that he developed after being exposed to military sexual trauma. The psychologist stated that he diagnosed the Veteran with PTSD early in his treatment at a VA facility. The psychologist maintained that the Veteran evidenced significant impairment due to PTSD related to military sexual trauma. There is no indication that the VA psychologist reviewed the Veteran's claim file prior to providing his opinion that the Veteran had PTSD related to military sexual trauma. The Veteran has not been afforded a VA examination, following a thorough review of the entire claims folder, with the goal of arriving at an opinion as to the etiology of any current psychiatric disorder, to include PTSD. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159(c)(4). See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). Prior to the examination, any outstanding records of pertinent treatment must be obtained and added to the record. Accordingly, the appeal is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for psychiatric problems, to include PTSD, since December 2009. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claim folder. Specifically, VA treatment records since December 2009 must be obtained. Document any unsuccessful efforts to obtain records, inform the Veteran of such, and advise him that he may obtain and submit those records. 2. Schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining whether any currently diagnosed psychiatric disorder, to include PTSD, is etiologically related to his period of service. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Prior to the examination, the RO must identify for the examiner any stressor or stressors that are established by the record. If a diagnosis of PTSD is appropriate, the examiner must specify (1) whether each alleged stressor found to be established by the evidence of record (whether by the RO or in the case of the alleged personal assault, in the examiner's opinion) was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. In offering these assessments, the examiner must acknowledge and comment on any lay evidence indicating a change in the Veteran's behavior as compared to his personality prior to entering active duty. If the examination results in psychiatric diagnoses other than PTSD, the examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder, other than PTSD, is related to or had its onset during the Veteran's period of service. In offering these assessments, the examiner must acknowledge and comment on any lay evidence indicating a change in the Veteran's behavior in or after service when compared to his behavior prior to entering active duty. The examiner must also specifically acknowledge and discuss the diagnosis of a passive-aggressive personality during the Veteran's period of service, as well as his reports that he suffered psychiatric problems during his period of service and continuous psychiatric problems since service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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. 2012). _________________________________________________ RONALD W. SCHOLZ 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).