Citation Nr: 1400262 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 09-14 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board previously remanded this appeal in July 2011. As noted in the prior remand, the VA Form 8 and the representative's appeal pre-certification review reflect that an appeal of the issue of entitlement to service connection for a bilateral ankle disorder was perfected. The Veteran, however, indicated in her April 2009 VA Form 9 that she was only appealing the issue of entitlement to service connection for a psychiatric disorder. 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 Veteran makes two arguments on appeal. Initially, she argues that she was not provided the requisite notice of the elements of service connection for PTSD based on military sexual trauma, to include a PTSD questionnaire. Despite that assertion, she was provided complete notice, and the requisite questionnaire, in October 2007. The Board agrees with the second argument presented, however - that the October 2011 VA examination is inadequate, because the examiner did not provide an opinion concerning whether the Veteran demonstrated behavior changes that could corroborate her claimed stressors. Given that those alleged in-service stressors involve personal assault and military sexual trauma, further VA examination consistent with 38 C.F.R. § 3.304(f)(5) (2013) is necessary. In Patton v. West, 12 Vet. App. 272, 280 (1999), the United States Court of Appeals for Veterans Claims recognized that it had at one point held that "an opinion by a mental health professional based on a post-service examination of the Veteran cannot be used to establish the occurrence of a stressor[.]" The latter statement, however, had been made in the, "context of discussing PTSD diagnoses other than those arising from personal assault." Id. As to personal assault cases, the Court noted that VA had provided for special evidentiary development procedures, "including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, ¶ 5.14c (Feb. 20, 1996)). In this regard, the Board notes that the Veteran divorced her first husband immediately following discharge from active duty. She claims that the divorce was due to her first husband's physical and sexual abuse. Such actions possibly meet the criteria of 38 C.F.R. § 3.304(f)(5) as a "behavior change" that could corroborate her stressor allegations. Additionally, the October 2011 examiner determined that one of the Veteran's alleged stressors, i.e., her allegation that, after having fallen asleep following a party, she woke up to find that a fellow soldier was masturbating onto her face - was insufficient to meet the criteria as a stressor under the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). While the Board does not have the psychiatric expertise to medically disagree with that finding, such a statement on its face shocks the conscience to such an extent that it is evident from the examination report that the finding is not adequately supported by the examiner's rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Moreover, while there currently is no credible corroborating evidence regarding this stressor, the examiner's consideration of any behavioral changes of the appellant may provide the necessary corroboration, and thus a new opinion is needed to address whether the alleged sexual assault is a sufficient stressor to which PTSD may be related. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination from an examiner who has not previously examined her. The examiner must review the claims file, this remand, and all relevant evidence in the Virtual VA electronic record. The ensuing report must indicate that such a review occurred. After obtaining a history of the Veteran's stressors and after diagnosing any psychiatric disability present, the examiner is to address the following: (1) During or immediately after service, did the Veteran demonstrate behavioral changes that are consistent with, and provide credible support for, her assertions of in-service physical and sexual abuse? (2) Is the Veteran's claimed stressor, i.e., awakening to find a fellow soldier masturbating onto her face, adequate to support a diagnosis of PTSD? The examiner must provide a complete rationale for all opinions expressed. If the examiner is unable to provide any requested opinion without resort to speculation, he or she must indicate why such an opinion would be speculative. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). _________________________________________________ DEREK R. BROWN` 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).