Citation Nr: 1337754 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-00 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant (Veteran) served on active duty from April 1964 to April 1968. She also had reserve duty and active duty for training (ACDUTRA) with the Colorado Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. The Board has determined that case law indicates that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, and the evidence that shows that the appellant had also been diagnosed with depression, the Board has recharacterized the issue on appeal, as reflected on the title page. In December 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the Virtual VA 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 appellant asserts, in essence, that service connection is warranted for PTSD based on service incurrence. She claims that she was physically assaulted when her husband returned from Vietnam and that as a result of that assault she now has PTSD. This occurred, she states, during ACDUTRA. She also maintains that while stationed at McGuire Air Force Base during active duty, she worked in logistics, and often saw the wounded servicemen and body bags and caskets of the dead soldiers being transported from the flight line. These stressors, in total, have presented to cause her PTSD. The dates and nature of the appellant's reserve service, including the particulars concerning periods of ACDUTRA and INACDUTRA, is unclear. While the appellant's service treatment records reflect reserve service subsequent to the Veteran's period of active duty service, it does not appear that all the necessary development has been accomplished in this regard. Indeed it does not appear that the service personnel records were obtained, nor were attempts made to verify the Veteran's duty status regarding the issue on appeal. As the outcome of this appeal may turn on whether the appellant's acquired psychiatric disorder to include PTSD was noted to have had its onset during ACDUTRA, attempts must be made to verify the nature and dates of the appellant's reserve/Air National Guard service, including all periods of ACDUTRA and INACDUTRA must be verified. As was previously stated, the appellant indicates assault during her ACDUTRA service in the 1970's. However, the appellant's uncorroborated testimony, with respect to her personal assault is not sufficient to verify the stressors set forth in this case. The Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the appellant alleges. See, e.g., Patton v. West, 12 Vet. App. 272 (1999). In any event, the Board acknowledges that the relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following the claimed assault(s) is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a 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, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of an appellant cannot be used to establish the occurrence of a stressor); see also Patton, 12 Vet. App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'in personal-assault cases). 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 & Supp. 2012); 38 C.F.R. § 3.159 (2013). 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. Id. Also, with respect to the appellant's service connection claim for PTSD, the Board acknowledges 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, 23 Vet. App. at 1. As discussed in the introduction, the evidence of record has shown that in addition to a diagnosis of PTSD, the Veteran has been further diagnosed with depression. Thus, although the Veteran's psychiatric claim was originally adjudicated only with respect to PTSD, under Clemons it can be broadened to include a claim for any acquired psychiatric disorder. Based on the foregoing, the appellant should be scheduled for a VA psychiatric examination by a medical professional with appropriate expertise to determine the likelihood that the alleged personal assault during service occurred, and if so, whether any current acquired psychiatric disorder is related to a personal assault incurred in service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all of the available service personnel records. In so doing, the Agency of Original Jurisdiction (AOJ) shall contact the National Personnel Records Center (NPRC) and any other appropriate agency necessary, including the appropriate Reserve Unit (140 Sg Battalion), to verify the exact dates of the appellant's periods of ACDUTRA and INACDUTRA, if any, particularly including June 1979. A simple listing of Reserve Points are not helpful in this regard. A line of duty determination regarding any injury(ies) sustained during that period (eye injury) should also be sought and associated with the claims folder. If, for any reason, this information is not verifiable, the appellant is to be so informed and the inability to verify the ACDUTRA and/or INACDUTRA must be noted in the claims folder. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the appellant should be scheduled for a VA psychiatric examination. (Advise the appellant that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2013).) All indicated studies should be performed. Following an examination of the appellant and a review of the relevant records and lay statements, the examiner is asked to opine whether it is at least as likely as not that the appellant's behavior during ACDUTRA service, and any other evidence is consistent with her claim of being sexually and or physically assaulted during her active service. If the examiner is of the opinion that a personal assault(s) occurred, the examiner should then state whether it is at least as likely as not that the appellant has PTSD, or any other acquired psychiatric disorder, as a result of such assault(s) in service. If the examiner determines that there is inadequate evidence to support the occurrence of the in-service personal assault(s) as is set forth in38 C.F.R. § 3.304(f)(5), or determines that the clinical evidence does not support a diagnosis of PTSD or psychiatric disorder due to the assault(s), the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not that any diagnosed psychiatric disorder (including PTSD) had its onset in service or is otherwise etiologically related to the appellant's service. The claims file must be made available to and thoroughly reviewed by the examiner. The psychiatrist must provide a complete rationale for all opinions offered. In this regard, the examiner should note 1) the appellant's various alleged service stressors/incidents, which are found in written statements; 2) medical records; 3) lay statements of record; 4) December 2012 hearing testimony; and 5). the December 2012 letter submitted by the appellant's inservice friend who related the appellant's statements regarding the wounded and deceased soldiers in body bags. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 3. Thereafter, readjudicate the appellant's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, on the merits. If the benefit sought on appeal remains denied, the appellant and her accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given the opportunity to respond to the SSOC. 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). _________________________________________________ F. JUDGE FLOWERS 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).