Citation Nr: 1339711 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-33 810 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to in-service personal assault. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the RO that, in pertinent part, denied service connection for PTSD. The Board notes that a VA formal finding was made in November 2009 with respect to finding a lack of information required to corroborate stressor(s) associated with the diagnosis of PTSD. A review of the Veterans Benefits Management System (VBMS) and Virtual VA reveals documents that are either duplicative of the evidence of record or not pertinent to the present appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Upon review of the case, the Board finds that additional evidentiary development is necessary with respect to the issue on appeal. In a March 2011 statement, the Veteran asserted that his PTSD stressor event occurred in service when he was confined in the brig. In December 2012, the Veteran reported that, in connection with his confinement, he experienced events that had continued to bother him, to include enduring physical abuse and witnessing the rape of a fellow soldier. First, the Board notes that there may be VA treatment records that are outstanding in this case. The March 2010 rating decision mentioned a VA Medical Center treatment record that indicated statements made by the Veteran to his social worker regarding his symptoms of PTSD. The Board finds that a review of the paper claims file and the virtual record (both VBMS and Virtual VA) does not contain such VA treatment records. The VA formal finding memorandum also indicated the existence of CAPRI records (VA Medical Center). Furthermore, a December 2012 PTSD therapist letter indicated that the Veteran was receiving current treatment for PTSD at VA. To the extent that these records are missing and may be relevant, the RO must obtain them. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Second, a review of the claims file reveals that, to date, the Veteran has not been provided with a notice letter informing him about the evidence from sources other than his service records, including evidence of behavioral changes following the alleged assault, that may constitute "credible supporting evidence of the stressor" under 38 C.F.R. § 3.304(f)(5). Significantly, pursuant to 38 C.F.R. § 3.304(f)(5), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him/her the opportunity to furnish this type of evidence or to advise VA of potential sources of such evidence. Gallegos v. Peake, 22 Vet. App. 329, 3335 (2008) (holding that the regulation governing PTSD based on in-service personal assault places a heightened burden of notification on VA in claims concerning in-service personal assault); Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006). Accordingly, on remand, such notification must be accomplished. Additionally, once the Veteran has been afforded such notice, VA must provide him with assistance in obtaining alternative sources of evidence by allowing him additional time to submit such evidence after receipt of the personal assault letter and, where appropriate, by obtaining evidence on his behalf. See 38 C.F.R. § 3.304(f)(5) (2013); Gallegos , 22 Vet. App. at 335; see also Patton v. West, 12 Vet. App. 272, 282 (1999). Finally, the Board finds that a VA examination may be necessary to determine whether the Veteran has PTSD or another psychiatric disability that is due to an event or incident of service. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, the RO should attempt to obtain copies of any outstanding VA psychiatric treatment records relating to the Veteran's claimed PTSD, to include any VA medical records previously referenced in the casefile. If there are outstanding private treatment records, the necessary steps, to include obtaining proper authorization to obtain relevant records should be taken to associate them with the record. All reasonable attempts to obtain such records should be documented. If any records cannot be obtained after reasonable efforts have been made, a formal determination should be issued that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records himself, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The RO then should provide the Veteran and his representative with an appropriate notice letter regarding his claim of service connection for an acquired psychiatric disorder based on an in-service personal assault that: (1) notifies him that evidence from sources other than his service records, including evidence of behavioral changes following the alleged assault, may constitute "credible supporting evidence of the stressor," and (2) suggests potential sources for such evidence (i.e., lay statements from anyone that he may have discussed the incident with either during or after service, including family members, friends, and fellow service-members). Once the Veteran has been afforded such notice, he should be provided with assistance in obtaining alternative sources of evidence by allowing him additional time to submit such evidence after receipt of the personal assault letter and, where appropriate, by obtaining evidence on his behalf. 3. The RO then should have the Veteran scheduled for a psychiatric examination in order to determine the nature and likely etiology of the claimed PTSD. The entire claims file (paper and electronic) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and reviewing the entire record, the examiner should provide an opinion as to whether it is at least as likely as not that any current psychiatric disability had its clinical onset during service or is due an event or incident of his period of service. If a diagnosis of PTSD is recorded, the examiner should specify whether (1) each alleged stressor found to be established by the evidence of record (whether by the RO or in the case of the alleged personal assault in the examiner's opinion) that supports the diagnosis; (2) each diagnostic criterion to support the diagnosis of PTSD also should be discussed; and (3) there is a link between the current symptomatology and the in-service stressor sufficient to produce PTSD. In offering these assessments, the examiner must acknowledge and comment on the lay evidence of record. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for any opinions rendered. 4. After completing all indicated development, the RO should readjudicate claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L.WILKINS 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).