Citation Nr: 1338602 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-16 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and bipolar disorder. 2. Entitlement to service connection for a gynecological disorder to include residuals of a ruptured right ovarian cyst. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service from August 1978 to July 1983. She served in the United States Navy Reserve from July 1986 to July 1988 with a period of active duty for training (ACDUTRA) from May 17, 1987, to May 29, 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This case has been before the Board previously twice, in May 2012 and June 2013, at which times the Board remanded the claims for additional development. Most of the directives of the Board's remands have been substantially complied with. Unfortunately, however, for the reasons below the Veteran's service connection claims must be remanded again. This 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 seeks service connection for PTSD and bipolar disorder, which she relates to a sexual assault(s) that happened during active duty service. The Veteran has never been provided with a notice letter addressing her PTSD claim due to sexual assault, particularly the alternative forms of evidence that can be provided to substantiate her claim. This should be remedied on remand. The Board also indicated in its previous remand in May 2012 that the Veteran should be asked to clarify whether a sexual assault that she reported happened in 1987 involving scissors held to her throat in an automobile occurred during a period of active duty service. A letter was sent to the Veteran in May 2012 requesting more information concerning the reported 1987 sexual assault, to which the Veteran never responded. However, the wrong disability was referenced at the top of the letter; so it is possible the Veteran might have overlooked this letter. The Veteran should be provided with another opportunity to clarify whether the sexual assault that occurred in 1987 happened during her period of active duty service from April to June 1987 with the correct information regarding the claim included in the letter. In addition the Board remanded the claim in June 2013, as the examiner who provided an opinion in September 2010 did not consider that the Veteran had reported reacting with fear during an event in 1979 in which she was forced to perform a sexual act in a temporary barracks. Thereafter a supplemental opinion was provided in June 2013. The examiner noted that the Veteran had not re-experienced the event when she was forced to perform oral sex during military service in 1979 in the temporary barracks and there was no evidence that the event traumatized the Veteran. The examiner further noted that her reaction to the event did not satisfy the criterion 1.b. for PTSD in DSM-IV (and noted that DSM-V criteria would not be used until October 2013). Even though the examiner has determined that there was no evidence that the Veteran was traumatized by the event in 1979, the examiner still has not clearly indicated whether or not the Veteran's statements of being afraid at the time of the event were considered. Given that one of the primary reasons the Board previously remanded the claim in June 2013 for a supplemental opinion was so that the examiner could consider the Veteran's statements regarding fear concerning the incident, this should be clearly indicated in the medical opinion provided. Also, another rationale provided for why the Veteran's psychiatric disorder was not related to military service was that depression was not diagnosed until 2006. However, VA treatment records from the VAMC in Milwaukee show a history of depression since as early as August 2002. Therefore, the Veteran's complete mental health history should be considered in the opinion provided. Regarding both claims, the Veteran has stated that she received treatment from the VAMC in San Diego from January 1983 to December 2004. According to a September 2007 Formal Finding of Unavailability regarding these records the RO noted that the San Diego VAMC indicated that they did not have the records. The RO then contacted the Palo Alto VAMC, who notified the RO that the records had been retired to the Federal Records Center. The RO then attempted to obtain the records from the Federal Records Center but was told only a VAMC could request the records. So the RO faxed a request to the San Diego VAMC to obtain the records from the Federal Records Center but received no response. The RO then called the Palo Alto and San Diego VAMCs and received a response that they had no records for the Veteran. The RO then determined that all efforts to obtain the records had been exhausted. However, the RO already knew that the VAMCs in San Diego and Palo Alto did not have records for the Veteran and needed instead for these facilities to request the records from the Federal Records Center. It is not clear from the record that what the RO needed has been fulfilled; namely that a VAMC has successfully contacted the Federal Records Center to determine whether there are pertinent treatment records for the Veteran there. This should be remedied on remand. A response from the Federal Records Center and/or relevant VAMC regarding contact with the Federal Records Center must be of record. Efforts to obtain the records also must be reflected in the VBMS file. Accordingly, the case is REMANDED for the following action: 1. Make arrangements for the San Diego VAMC and/or Palo Alto VAMC to contact the Federal Records Center and request treatment records for the Veteran from January 1983 through December 2004. All efforts to obtain these records should be reflected in the VBMS file. A response from the Federal Record Center and/or relevant VAMC regarding contact with the Federal Record Center must be evident. If efforts to obtain these records are unsuccessful, notify the Veteran and indicate what further steps VA will make concerning the claim. 2. Send the Veteran a notice letter for her service connection claim for PTSD and bipolar disorder due to sexual assault that includes the alternative forms of evidence she may submit to substantiate her claim. In the letter, also ask her to clarify whether a sexual assault that she reported happening in a car in 1987 with a man holding scissors to her throat occurred during her period of active duty service from April to June 1987. 3. Thereafter, return the Veteran's claims file to the examiner who conducted the September 2010 and May 2012 PTSD examinations. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the addendum opinion is to determine whether the Veteran met the criteria for PTSD based on her reaction of fear during an assault in the temporary barracks in 1979 when she was forced to perform a sexual act. If deemed necessary, please also consider the applicable DSM criteria. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must specifically address the Veteran's July 2010 lay statement, in which she describes being forced to perform a sexual act on a man who entered her temporary barracks room in 1979. She stated that she was afraid that he was going to harm her and that is why she complied with his demand. c) The examiner also must consider the Veteran's history of depression dating back to 2002, as evidenced in VA treatment records from the Milwaukee VAMC, as well as any additional treatment history that is obtained from the VAMCs in San Diego and/or Palo Alto from 1983 to 2004. d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. A complete explanation for such a finding must be provided. 4. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2013). _________________________________________________ S. L. Kennedy 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).