Citation Nr: 1338451 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-13 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: J. Robert Surface, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in September 2010, a statement of the case was issued in April 2011, and a substantive appeal was received in May 2011. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is included in the record. At the hearing, the Veteran submitted additional evidence accompanied by a waiver of initial RO consideration. Additionally at the hearing, the Veteran requested and was granted a 30 day abeyance period to allow for the submission of additional evidence, with a waiver of RO consideration stated on the record; such evidence was received. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Regarding the Veteran's claim seeking service connection for PTSD and depression, that is the specific claim adjudicated by the RO and developed for appellate review. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim (and that such matter(s) is/are before the Board). Notably, the Veteran's treating and evaluating mental health personnel have also assigned her diagnoses of anxiety and dysthymic disorder. The issue is characterized as service connection for an acquired psychiatric disability with the intent that consideration will be given to any acquired psychiatric disability, however diagnosed. The Veteran's claim of service connection for PTSD is based on an allegation that such disability resulted from personal assaults in service. She contends that, while serving onboard the U.S.S. Carl Vinson, she was frequently sexually harassed and verbally and emotionally assaulted by her peers. She contends that she was sexually assaulted on at least one occasion, in late 2003. She contends that she was singled out for being resistant to the prevailing culture of needing to return sexual favors in order to progress along the career ladder. She contends that she slept with her weapon in a defensive posture due to fear of rape, as she felt that males on board had easy access to the women's bunks. She contends that her peers set her up to endure extra physical hardships in retaliation. C.F.R. § 3.304(f) provides that, if a PTSD claim is based on in-service personal assault, evidence from sources other than service records may corroborate the veteran's account of the stressor incident. 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; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault 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. 38 C.F.R. § 3.304(f)(3). The Veteran has submitted statements from her mother and grandmother describing her state of mind throughout her service based on what she related to them during her time in service. The alleged stressor events in service may not be capable of complete corroboration by official records; nevertheless, service records might provide at least partial corroboration for the accounts. While statements from the Veteran's mother and grandmother would appear to corroborate her alleged stressors, they were written at her behest over 8 years after her separation from service. Their probative value would be enhanced by any contemporaneous evidence corroborative of her accounts, such as any retained letters or e-mail communications between the Veteran and her mother or grandmother at or shortly after the time of the alleged in-service assaults. Notably, the Veteran's VA treatment records reflect that she began seeking mental health treatment in May 2005, or 9 months after her separation from service. At that time, a PTSD screen was positive, a depression screen was positive, and she reported feeling irritable, angry, and paranoid, with additional symptoms of anxiety and sleep disturbance; the diagnoses included PTSD, dysthymic disorder, depression, and anxiety. On June 2005 VA treatment, she described her four years in service as a "living hell", reporting that she slept with a knife under her pillow as she had been harassed as well as attacked physically and sexually. On subsequent treatment, she reported poor concentration, confusion, intrusive memories, social isolation, and hypervigilance in addition to the previously reported symptoms. The Board notes that whether the Veteran's service personnel records show evidence of behavioral changes is (in part at least) a medical question, and some medical guidance is necessary. Finally, updated records of any VA psychiatric treatment the Veteran may have received are constructively of record and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete updated clinical records (any not already associated with the claims file) of any VA treatment the Veteran has received for psychiatric disability. 2. The RO should ask the Veteran to indicate whether there is any contemporaneous corroborative evidence of her alleged stressor events in service, e.g., retained contemporaneous communications (letters or e-mails) by/to the Veteran or by/to her mother and/or grandmother, and if so to submit such evidence. 3. The RO should then arrange for appropriate development for information tending to corroborate her alleged stressor event(s) in service. Any leads regarding further sources of information should be pursued to their logical conclusion. If this development proves fruitless, the scope of the search for information should be described in detail for the record. 4. The RO should then arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine the nature and likely etiology of her psychiatric disability, and specifically whether she has PTSD based on a corroborated stressor event in service. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination (and the examiner should be advised of any and all official and lay evidence that is corroborative of the Veteran's stressor accounts, and when such evidence was generated (whether recent or contemporaneous with the alleged events)). Based on a review of the record, and psychiatric examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Was a psychiatric disability manifested in service? If so, please identify (by medical diagnosis) such disability? Please also explain whether the Veteran's service personnel records contain any evidence of behavioral changes described in § 3.304(f) as supporting evidence of a personal assault stressor event. (b) What is the nature and likely etiology of the Veteran's current psychiatric disability? Specifically, does she have PTSD based on a stressor event that occurred in service? If PTSD is diagnosed, please identify the underlying stressor event(s) and the corroborative evidence of such event(s), and the symptoms that support the diagnosis. If PTSD is not diagnosed (or diagnosed but attributed to a nonservice stressor event), please explain what is lacking for such diagnosis (and if attributed to a nonservice stressor, please identify the factual evidence that supports such conclusion). (c) Please also opine whether any psychiatric disability diagnosed other than PTSD was manifested during service (or a psychosis within one year of discharge) or is otherwise causally related to the Veteran's service (and the nature of any such relationship). The examiner should discuss the Veteran's apparent changes reported by her mother and grandmother, as well as the fact that her VA treatment records showed mental health complaints and treatment as early as May 2005 (9 months after service). The examiner must explain the rationale for all opinions offered. 5. The RO should then re-adjudicate the Veteran's claim, to encompass all psychiatric diagnoses shown in accordance with Clemons. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and her attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. 2013). _________________________________________________ ALAN S. PEEVY 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) (2013).