Citation Nr: 1342397 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-28 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as asthma. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to June 1992. She also served as a member of the Army National Guard with periods of active duty for training from February to July 1987 and May to August 1988. These matters come on appeal before the Board of Veteran's Appeal (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for PTSD and asthma. The Veteran expressed disagreement with this decision. The Board notes that the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2012. Transcript of the hearing has been associated with the claims folder. The United States Court of Appeals for Veterans Claims (Court) has recently held that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App 1 (2009). In this case, the Board has considered the Veteran's claim for all possible psychiatric disorders and has recharacterized the issue accordingly. 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 Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for an acquired psychiatric disability to include PTSD and for a breathing disorder. In a November 2009 statement, the Veteran reported that she received care multiple times for asthma bronchitis at Luke Air Force Base in Glendale, Arizona after her discharge from active duty. There is no indication in the claims file that treatment records from this facility have been obtained. As such, the Veteran should be requested to provide the necessary authorization for VA to obtain any outstanding treatment records from any treatment provider to include treatment records from Luke Air Force Base. Thereafter, she should be afforded a VA examination to determine the nature and etiology of her claimed breathing disorder. '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 or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.' 38 C.F.R. § 3.304(f)(5) (2013). In this regard, the Board notes that the January 2009 VCAA notice provided to the Veteran did not advise her of such. Therefore, a remand is also necessary so that the Veteran may be so advised. The Veteran claims that she has an acquired psychiatric disorder to include PTSD as a result of an in-service incident where she was sexually assaulted in 1989 while serving with the Army National Guard. She has also reported sexual harassment while working with the Maryland State Police, as a member of the National Guard, and a rape which took place in 1997. The Veteran underwent a VA examination in October 2009. During the examination, the Veteran reported her claimed stressors and a mental status examination was conducted. The examiner determined that the Veteran meets the criteria for a PTSD diagnosis. The primary stressor related to PTSD is military sexual trauma (MST), multiple incidents of sexual harassment. Though the Veteran has a positive nexus opinion, the Board notes that none of her claimed stressors have been verified or corroborated. Specifically, the Board finds that although 1997 sexual assault occurred, the assault was not while the Veteran on active duty or inactive duty for training. Given the contemporaneous statements at the time of the assault that she was not working, the statement to the VA examiner that she was hitchhiking, and the reserve service records which indicate she had only 4 days of inactive duty for training from November 1996 to September 1997, and a non-commissioned officer evaluation report for the period from December 1996 to November 1997 which does not indicate that the Veteran was still in service with the Maryland State Police, the Board finds the assertion by the Veteran that she was on active duty at that time to be not credible. Because of this determination, the Board finds another VA examination is necessary to determine whether the Veteran developed a psychiatric disorder due to an injury which only occurred during her periods of active duty or active duty for training. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VCAA notice '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 or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.' See 38 C.F.R. § 3.304(f)(5) (2013). 2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal, of particular interest is any treatment for breathing problems after her deployment to Saudi Arabia. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After all of the above development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed breathing disorder. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed, to include service treatment and personnel records. The examiner should be asked to provide a specific opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran has a current respiratory disorder that had its onset in service; or is etiologically related to service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 4. After all of the above development has been completed, schedule the Veteran for a VA examination to determine the likelihood that the Veteran's claimed military sexual trauma actually occurred, and if so, whether he has PTSD or depression that is the result of that stressor. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed, to include service treatment and personnel records. The examiner should be asked to provide a specific opinion as to: (a) Whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the claimed military sexual assault occurred; and (b) If so, whether it is at least as likely as not that the Veteran has a current acquired psychiatric disorder that is related to the incident; otherwise had its onset in service; or is etiologically related to service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if 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). _________________________________________________ C. TRUEBA 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).