Citation Nr: 1338677 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-19 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part denied the above claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 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 Board must remand the claim PTSD for a VA medical examination. As an introductory matter, the Board notes that the Veteran's claim has previously been treated as simply entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. The record reflects numerous psychiatric diagnoses. Therefore, the Veteran's claims have been recharacterized as one of service connection for any psychiatric disorder, to include PTSD. The issue has thus been restated on the title page of this decision. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). If, however, a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor. Examples of such evidence include, but are not limited to, statements from family members, and evidence of behavior changes following the claimed assault. 38 C.F.R. § 3.304(f)(5). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to personal assault PTSD claims. In particular, the Court held in Patton that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). The Board notes that M21-1, Part III, Chapter 5, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. See generally M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. These M21-1MR provisions on personal assault PTSD claims require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. As to personal assault PTSD claims, more particular requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30b. Further, the relevant provisions of M21-1MR indicate that behavior changes that occurred around the time of the incident may indicate the occurrence of an in-service stressor and that "[s]econdary evidence may need interpretation by a clinician, especially if the claim involves behavior changes" and "[e]vidence that documents behavior changes may require interpretation in relation to the medical diagnosis by a neuropsychiatric physician". See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30c. 38 C.F.R. § 3.304(f)(5)states: If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . 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 . . . ; or unexplained economic or social behavior changes. . . . VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), " medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1." The Veteran has claimed that his current psychiatric difficulties, diagnosed variously as PTSD and a depressice disorder were precipitated by a sexual assault in service and the stress of military duties. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) ; 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is a current diagnosis noted in a May 2009 VA treatment record, where the examiner diagnosed the Veteran with PTSD related to the episode of sexual abuse. Furthermore, the Veteran's wife submitted a statement in June 2008 reporting that around the time of the Veteran's alleged sexual assault, his behavior changed dramatically. However, there is not presently enough information of record to resolve the issue. The Veteran was never afforded a VA examination and opinion that addresses the extent of the Veteran's current PTSD and whether that disorder is directly service connected. For the foregoing reasons, the Board finds that a VA examination should be issued concerning the Veteran's claim for service connection for a psychiatric disability, to include PTSD. The examiner should offer an opinion as to whether there is a current PTSD or other psychiatric disability, and if so, whether it is directly related to service. All lay and medical evidence should be considered, to include any assertions of persistent symptoms that may be made by the Veteran. In this regard, the Board notes that the Veteran is competent to report observable symptomatology, and the lack of contemporaneous medical records does not, in and of itself, render such lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). However, this may be weighed against other lay and medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with VCAA compliant notice. Specifically, the Veteran should be notified of what is required to substantiate a claim of service connection for a generic psychiatric disability - not just the specific requirements for PTSD. 2. The Veteran should also be provided with the opportunity to provide additional information in support of his alleged in-service stressor. If any additional evidence is provided by the Veteran, all reasonable steps should be taken to attempt to verify the alleged stressor. All steps taken should be documented in the claims file. 3. The AMC should also contact the Veteran to determine whether he has received any additional private treatment for his PTSD or other psychiatric disability, and if so, take steps necessary to obtain these records. Any response received should be memorialized in the Veteran's VA claims file. 4. After obtaining any available VA and private treatment records, the Veteran should be scheduled for VA examinations with the appropriate medical professional to first identify the nature and extent of all psychiatric pathology. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this REMAND in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. The examiner should be asked to provide an opinion addressing the following questions: (a) Is a diagnosis of any psychiatric disorder, to include PTSD, appropriate ? (b) If PTSD is diagnosed, is it at least as likely as not that this condition is secondary to the personal assault recounted by the Veteran or otherwise to his duties in military service? The examiner should specifically address whether the behavior changes, including excessive drinking reported by the Veteran, were indicative of the onset of PTSD or other chronic psychiatric illness. (c) If the Veteran is found to have a psychiatric disorder(s) other than PTSD, is it at least as likely as not that this disorder(s) manifested during, or as a result of, military service? Lay evidence is potentially competent to support the presence of a disability, during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. Accordingly, the examiners must discuss the rationale of the opinions provided, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including the Veteran's competent and credible lay testimony. 5. Then, the AMC should readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board 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). _________________________________________________ WAYNE M. BRAEUER 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).