Citation Nr: 1339670 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-47 043 ) 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 disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to December 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A videoconference hearing before the undersigned Veterans Law Judge was held in October 2012. A transcript of the hearing has been associated with the claims 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran claims service connection is warranted for an acquired psychiatric disorder, to include PTSD and depressive disorder, based on an in-service incurrence. The Veteran asserts that he was sexually assaulted while on active duty. He maintains that there was a change in his behavior in service and that he started acting out as a result of his assault. In addition, the Veteran stated that he was mistreated by other soldiers as he was thrown from a truck during field maneuvers, pelted with snowball and BB rifles, and his mattress was set on fire. He has been diagnosed and is currently treated for PTSD and depressive disorder. The Veteran stated that since the incident and separation from service, he was drinking and using drugs to cope and had problems with assault and battery and other drug-related issues. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). The Board notes that a recent regulatory change during the pendency of the appeal has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. See 75 Fed. Reg. 39843-39852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). However, as the Veteran's alleged stressor is not related to hostile military or terrorist activity, these regulatory changes are not for pertinent to the case. The Board notes that the Veteran's service personnel records show no clear indication that a personal assault occurred. However, a record from the Department of the Army, dated November 1974, regarding an expeditious discharge indicates three Company grade Article 15s were issued between February 1974 and July 1974 with a pending Field grade Article 15 charged in November 1974. It was noted that the Veteran was not able to perform his duties as a soldier due to his severe personal problems. The record further stated that the Veteran admitted he felt it was a mistake to enlist in the Army. The Veteran's uncorroborated testimony, with respect to his 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 Veteran 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) recently 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 a Veteran 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). In this regard, the Board acknowledges the Veteran has been treated for PTSD and depressive disorder, and that he testified under oath of his in-service assault. However, the Board finds there is insufficient competent evidence on file for the VA to make a decision on the claim. The record is unclear as to whether the Veteran's diagnoses are etiologically related to the alleged military sexual trauma. 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); 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. Based on the foregoing, the Veteran 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). Furthermore, the Board also recognizes that records may be absent from the claims file. The RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran testified that he was initially treated "all over Massachusetts" following service. With the Veteran's assistance, these private records must be identified and associated with the claims file. He further stated he started receiving treatment from the VA in the 1990s. The only VA treatment records within the claims file have been from the Mountain Home VA Medical Center. The Veteran stated he has been receiving treatment at the Sumter VA Medical Center, the Durham VA Medical Center, and the VA clinic in Goose Creek. These VA treatment record must be obtained and associated with the claims file. Finally, the most recent record within the claims file from the Mountain Home VA Medical Center is dated February 2012. Thus, on remand, the RO must secure any outstanding records from the Mountain Home VA Medical Center since February 2012 and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment, namely from Sumter VA Medical Center, the Durham VA Medical Center, the VA clinic in Goose Creek, and records since February 2012 from the Mountain Home VA Medical Center. In addition, obtain all private treatment records which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be scheduled for a VA psychiatric examination. VA should notify him 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 Veteran 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 Veteran's behavior in service, to include disciplinary issues, acting out behavior, and substance abuse problems, and any other evidence is consistent with his claim of being sexually assaulted during his active service. These behaviors are of record and located in his service treatment and service personnel records. 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 Veteran has PTSD, depressive disorder, 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 in 38 C.F.R. § 3.304(f)(5), or determines that the clinical evidence does not support a diagnosis of PTSD, depressive disorder, or any other 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 and depressive disorder) had its onset in service or is otherwise etiologically related to the Veteran'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 Veteran's various alleged service stressors/incidents, which are found in written statements; 2) medical records; 3) lay statements of record, and 4) the October 2012 hearing testimony. 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. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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).