Citation Nr: 1336368 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-29 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2005, the Veteran testified at a personal hearing before a decision review officer (DRO). A transcript of the hearing has been associated with the Veteran's VA claims file. In a June 2007 decision, the Board denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Order, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding the case to the Board for further consideration. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action on his part is required. REMAND Here, the Veteran asserts entitlement to service connection for PTSD based upon military sexual trauma. Specifically, he contends that he was harassed and sexually assaulted by his team leader between April 1975 and December 1975. See the RO hearing transcript dated November 2005. With respect to the pending claim, the Board initially notes that the applicable regulation provides additional instruction in regard to claims involving service connection for PTSD due to personal assault. See 38 C.F.R. § 3.304(f)(5) (2013). While this claim was pending, 38 C.F.R. § 3.304(f) was amended in July 2010 to add a subsection to the regulation in regard to the evidentiary standard for establishing the required in-service stressor for claims involving a veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843-39,852 (July 13, 2010). A correction was published to establish the effective date of the amendment as of July 13, 2010. See 75 Fed. Reg. 41,092 (July 15, 2010). The change in regulation did add a new subsection 38 C.F.R. § 3.304(f)(3) and required the renumbering of the existing subsections. Thus, the applicable subsection relating to personal assault was renumbered as 38 C.F.R. § 3.304(f)(5). No substantive change was made to the pertinent regulation relating to personal assault cases. With respect to the Veteran's claim of entitlement to service connection for PTSD, the parties to the Joint Motion for Remand determined that the Board did not provide a specific finding of the Veteran's credibility in his report of military sexual trauma and errantly discounted a medical opinion based upon his account of the in-service military sexual trauma. Specifically, the parties agreed that remand was necessary in order for the Board to ensure careful evaluation of the medical and lay evidence as directed by 38 C.F.R. § 3.304(f) including consideration of whether the lay evidence and VA clinical psychologist's opinion are sufficient corroborating evidence of the Veteran's alleged in-service stressor pursuant to the Court's holding in Patton v. West, 12 Vet. App. 272, 281 (1991). In this matter, the Board has reviewed the evidence of record and notes that the Veteran's treating psychologist diagnosed him with delayed onset PTSD secondary to military sexual trauma. See, e.g., the VA treatment records dated April 2004, June 2004 and September 2004. The Board also recognizes the Court's holding in Kowalski v. Nicholson, 19 Vet. App. 171 (2005) finding that the Board may not reject a favorable medical opinion solely on the rationale it was predicated on a history as recounted by the Veteran, unless the Board determines this recounted history is not credible. See Kowalski, supra; see also Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board concludes that a VA examination is necessary to address whether the Veteran suffers from PTSD that is due to military sexual trauma. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address this outstanding question with respect to the Veteran's claimed PTSD. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from June 2005. All such available documents should be associated with the claims file. 2. After the above-referenced development has been completed, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his claimed PTSD. The claims file must be made available to the examiner for review in connection with the examination. All pertinent testing deemed necessary should be accomplished, and the results of any such studies should be included in the examination report. The examiner should identify each psychiatric disorder experienced by the Veteran. The examiner should either diagnose or rule out PTSD. For each psychiatric disability present, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset in service or is otherwise related to the Veteran's military service, including the claimed military sexual trauma. In rendering his/her opinion, the examiner should address the diagnosis of delayed onset PTSD due to military sexual trauma, which has been rendered by the Veteran's VA treatment provider. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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 remanded by the Board or by the Court 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). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).