Citation Nr: 1340987	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  11-09 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder.

2.  Entitlement to service connection for a psychiatric disorder.


REPRESENTATION

Appellant represented by:	Vermont Veterans Affairs Section, Military Department


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse.




ATTORNEY FOR THE BOARD

A. Hinton, Counsel


INTRODUCTION

The Veteran served on active duty with the Army National Guard from July 1983 to December 1983, and from November 2004 to January 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, which declined to reopen a claim of service connection for depression and denied service connection for PTSD.  

In March 2012 the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the claims file.

The issue has been recharacterized as indicated on the title page.

The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In a September 2007 rating decision, the RO denied service connection for
depression on the basis that the Veteran's depression no longer existed.  That decision is now final.  


2.  The additional evidence presented since the September 2007 rating decision denying service connection depression, relates to an unestablished fact necessary to substantiate the claim for service connection.


CONCLUSION OF LAW

The criteria for reopening the previously denied claim of service connection for depression have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

Duties to Notify and Assist

The Board is granting in full the benefits sought on appeal decided below.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the September 2007 rating decision the RO denied service connection for depression on the basis that the evidence showed that the Veteran was treated for depression and adjustment disorder, and that the Veteran's depression no longer existed.  

The essential basis of the September 2007 rating decision to deny service connection was evidence contained in a March 2007 VA examination report, which included a diagnosis that the Veteran did not have an Axis I diagnosis at that time.  

The Veteran was notified of the September 2007 rating decision, but did not appeal and it became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 

In the December 2009 rating decision on appeal, the RO declined to reopen the previously denied claim.  However, in a subsequent supplemental statement of the case, the RO adjudicated the claim on the merits.  Nevertheless, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim regardless of the RO's action.  Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Additional evidence received since the September 2007 rating decision includes diagnoses of psychiatric symptomatology including a diagnosis of depression.  Statements of November 2008 and December 2010 from a VA mental health provider noted that the Veteran was receiving treatment for depression as well as for PTSD.  Other VA medical records of mental health treatment in October 2008 and March 2009 contain assessments of depression.  

This new evidence relates to an unestablished fact necessary to substantiate the claim; that is, a current diagnosis of depression.   Reopening the claim is warranted.


ORDER

The claim of service connection for a psychiatric disorder is reopened. 


REMAND

The Veteran claims in-service sexual assaults.  

The scope of the Veteran's claims for service connection for PTSD and depression include any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1(2009).    Accordingly, the two claims have been merged.

The record contains diagnoses of psychiatric disorders including PTSD and depression.  Statements by a treating VA Licensed Mental Health Counselor in November 2008 and December 2010 refer to the treatment the Veteran was receiving for the symptoms of the Veteran's PTSD and depression.   VA medical records of mental health treatment in October 2008 and March 2009 contain assessments of depression.  

During a January 2011 VA examination the Veteran described three episodes of military sexual assaults occurring in service, which he stated was the etiology of his PTSD.  The January 2011 VA examination report included depression among other psychiatric findings on examination, and concluded with an Axis I diagnosis of PTSD.  

Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f).  

Regarding the third element, if as here, a posttraumatic stress disorder claim is based on in-service personal assault, then evidence from sources other than the Veteran's service records may corroborate his account of the stressor incident occurring in service.  

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.  VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether the evidence of behavior changes indicates that a personal assault occurred.  Id.  

With respect to the question of whether there were any changes in the Veteran's functional status and quality of life following his military sexual trauma exposure, the examiner commented that the Veteran had exhibited anxiety, withdrawal from others, and agitation around his grandchildren, and the examiner indicated that these changes have impacted his relationship with family and friends.  With respect to the question of whether there was any linkage between PTSD symptoms and those changes in impairment, functional state, and quality of life, the examiner opined that the Veteran's changes in functioning were directly related to his PTSD. 

However, in an addendum to the January 2011 VA examination report, the examiner was asked to identify which of the assaults during active service led to the Veteran's PTSD; and to indicate if there are any "markers" of the assaults leading to the Veteran's PTSD.

The examiner commented that the sexual assault occurring in Kuwait in 2005 led to the Veteran's PTSD, however, he further commented that there were no documented markers of the assault and that the diagnosis of PTSD was based on the report of the Veteran.

An examination is necessary to obtain an opinion on the likelihood that the evidence of the Veteran's behavior changes following his 2004-2005 active service would indicate that a personal assault occurred that led to the Veteran's diagnosed PTSD. 

As the record indicates that the Veteran has been receiving ongoing VA treatment for his psychiatric condition, any medical records of treatment not in the claim file including all such records dated since April 2011 should be obtained prior to examination.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify all medical care providers who have evaluated or treated him for his psychiatric disorder to include PTSD and depression.  Request copies of any pertinent private or VA medical records not currently of record from all sources identified, to specifically include VA treatment records dated since April 2011.

2.  Notify the Veteran that he may submit statements from himself and others who have observed him, describing their impressions regarding the onset and chronicity of psychiatric symptoms observed since active service, including behavioral changes that could indicate that a personal assault occurred during active duty, such as 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.    

3.  After completion of the above, schedule the Veteran for a VA examination by a VA psychiatrist or psychologist.  The entire claim file (i.e., the paper claim file and any medical records contained in VBMS, Virtual VA, CAPRI, and AMIE, must be available and reviewed by the examiner, and such must be noted in the examination report.  If the examiner does not have access to VBMS or Virtual VA, then any relevant treatment records contained in those files that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

The examiner is to perform all indicated studies/diagnostic testing.  All findings must be reported in detail.  In offering opinions, the examiner must acknowledge and discuss the Veteran's report of a continuity of relevant symptoms since service.  

The examiner must opine as to whether it is at least as likely as not (probability of at least 50 percent) that any current psychiatric disorder, to include PTSD or depression, is related to the Veteran's active service, to include as due to one or more of the Veteran's reported personal assaults (military sexual trauma) described in a November 2008 statement by a VA Licensed Mental Health Counselor, and in a January 2011 VA examination report.

For any current PTSD, the examiner is asked to identify the in-service stressor or stressors linked to the PTSD.

The examiner must opine as to whether reported behavioral changes following his November 2004 to January 2006 active service indicates that a personal assault occurred.  In formulating the opinion of whether the Veteran's behavioral changes indicate that a personal assault occurred, the VA examiner is asked to comment on the clinical significance of any claims file evidence of noted behavioral changes, including:  
(i) changes reflected over time in VA and private treatment records dated since January 2006, such as the need for medication and other findings not present before, including meeting Beck Depression "inventory criteria suggesting possible presence of PTSD that should be further evaluated" (December 2008) and positive screen for military sexual trauma (October 2008 and November 2009); and notations showing: the Veteran's concern about being deployed and victimized again (December 2008), and an increased difficulty at a previously long-term job, ultimately changing jobs to one as school custodian at night shift in September 2006 (2006).
(ii) changes noted as findings in statements of November 2008 and December 2010 by a VA Licensed Mental Health Counselor, including her opinion that the Veteran's concerns and behavior were not uncommon for anyone who has experienced military sexual trauma; and,
(iii) changes noted by the Veteran's spouse in testimony at the March 2012 hearing before the undersigned Veterans Law Judge, and in statements submitted by family members.

4.  After the above development, adjudicate the claim of service connection for a psychiatric disorder to include posttraumatic stress disorder and depression, to include application of 38 C.F.R. § 3.304(f).  If any benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board.




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).





______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs