Citation Nr: 1417575 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 10-20 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) due to an in-service personal trauma. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to December 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in October 2012. A transcript of the hearing is of record. When this claim was before the Board in March 2013 and September 2013, it was remanded for additional development and adjudicative action. The case has since been returned to the Board for further appellate action. The record before the Board consists solely of electronic files known as Virtual VA and the Veterans Benefits Management System. REMAND The Board's review of the record reveals that further development is warranted. The Veteran seeks entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD) due to an in-service rape. A May 1969 service treatment record (STR) notes that the Veteran was admitted for "situational-maladjustment reaction, impulsive," after he attempted to commit suicide by overdose on a prescription medication. The Veteran indicated that his attempt was related to receiving a Dear John letter. A September 1969 performance review notes that the Veteran's military appearance was "lax," he had to be reminded to "Square Away" often, and personal problems made him moody. In October 1969, the Veteran received a psychiatric consultation, "for feelings of inner agitation, panic, anxiety, restlessness, loss of appetite, apathy, lethargy, and general irritability." He reported being unable to adapt to military life and was not motivated to continue military service. The record notes that the Veteran had had an unauthorized absence and was repeatedly seen for anxiety. He was diagnosed with passive-aggressive personality, and discharged for unsuitability in December 1969. VA Medical Center (VAMC) treatment records document psychiatric treatment from July 1979 to November 1979 after the Veteran reported contemplating suicide by motorcycle accident. The Veteran stated he was, "very confused, unable to make decisions and acting like a zombie." He also reported chest pain related to stress and difficulties related to an ongoing separation from his wife. VAMC records also indicate the Veteran enrolled in a counseling program for anxiety, depression, and low self-esteem from May 1984 to January 1997, "due in part to marital problems." A March 2008 VA treatment note is the first documented disclosure of military sexual trauma that was reported while the Veteran sought treatment for other psychiatric symptoms. An April 2008 treatment record reports that the Veteran was at a bus station en route to his naval vessel when a man invited him to wait for the bus at his home. The Veteran reported having a drink then vaguely remembering a sexual assault, throwing up in the man's bathroom, and being dropped off at the bus station. Upon return to his ship, he began huffing glue and drinking excessively, which led to disciplinary actions, counseling, and a suicide attempt. A VA nurse practitioner diagnosed PTSD as a result of military sexual trauma and the Veteran began psychiatric treatment, to include treatment at the VA Center for Sexual Trauma Services (CSTS). In a September 2008 VA examination report, the examiner noted the Veteran's 1969 diagnosis of passive aggressive personality and VAMC diagnosis of PTSD and determined that it would be resorting to mere speculation to give a definitive diagnosis to the Veteran. The VA examiner further found it "as likely as not" that the Veteran's current symptoms were the same mental disorder he was diagnosed with during service (passive aggressive personality), but noted that it would now be characterized as antisocial personality disorder. The VA examiner opined it would require speculation to attribute any of the Veteran's symptoms to a claimed sexual trauma. Subsequent VAMC treatment notes document the Veteran's assertion that the September 2008 VA examiner barely spoke to the Veteran. A November 2008 VAMC treatment note indicates that the Veteran was reassured that his symptomatology was consistent with experiencing sexual trauma. A December 2008 VAMC treatment note states that there was no evidence that the Veteran had a personality disorder and that the Veteran's diagnoses were PTSD and mood disorder secondary to severe cardiac disease. A May 2008 VAMC treatment note reports that the Veteran's symptoms increased after participation in CSTS therapy. In September 2008, the Veteran "blacked out" in a state of rage that the VA psychiatrist indicated was due to exacerbation of his PTSD symptoms since he disclosed his sexual trauma. A January 2009 VAMC treatment note indicates that the Veteran had a history of avoidance as a coping mechanism related to trauma and that the Veteran began drinking and using drugs to avoid feelings and memories after his assault. The Veteran reported that he planned on shooting himself in October 2009. In January 2010, the Veteran was admitted for in-patient psychiatric treatment due to an incident in which he shot his gun in the air after his wife came home drunk and he told her she would not receive his VA benefits if he committed suicide. The VA treatment note reports that the Veteran had symptoms of poor sleep, rage, anxiety, racing thoughts, impulsivity, and depression. The VA psychiatrist diagnosed bipolar II illness and the discharge report notes that the Veteran's angry mood swings were perceived to be caused by military service trauma and related to PTSD. The psychiatrist stated, "however it is very possible that the trauma precipitated a mood condition, concommitently with his anxiety problems." In multiple written statements and testimony before the Board, the Veteran contended that his in-service behavioral changes and suicide attempt were related to the personal assault and that he made up receiving a Dear John letter because he did not want to disclose the rape. In a December 2013 VA therapy note, the Veteran was assessed with PTSD per history, secondary to military sexual trauma, with current symptomatology subthreshold. In March 2013, the Board remanded the Veteran's claim, in part, for a VA examination to determine whether the Veteran's PTSD stressor of an in-service rape could be verified, to resolve conflicting evidence of record regarding the Veteran's current psychiatric diagnoses and to ascertain the etiology of all acquired psychiatric disorders present during the pendency of the claim. The report of an April 2013 VA examination reflects that the VA examiner determined the Veteran did not warrant a diagnosis of PTSD and was unable to determine whether the Veteran's in-service markers were indicative of a sexual assault. The VA examiner noted that the Veteran's service record included, "complaints of inner agitation, panic, anxiety, restlessness with loss of appetite, apathy, lethargy, and general irritability, with difficulties adapting to the regimentation of military life, resenting having to take orders, and lack of motivation for further military service." The VA examiner also pointed to notations in the Veteran's service record that he had an unauthorized absence and suicidal gesture that were related to marital difficulties, a diagnosis of passive aggressive personality, and administrative discharge due to unsuitability when determining that no opinion could be rendered. The VA examiner opined that it would require speculation to address whether the Veteran's in-service markers were indicative of an alleged sexual assault in March 1969. Further, it would be, "mere speculation to provide that opinion as there was over endorsement of symptoms of PTSD in this examiner's professional opinion." The VA examiner was unable to "differentiate legitimate symptoms from exaggerated or feigned symptoms and is unable to provide a diagnostic impression or give an assessment of occupational and social functioning." After reviewing the April 2013 VA examination report, the Board has determined that the originating agency did not substantially comply with the March 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds the April 2013 VA medical opinion to be inadequate for adjudicative purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the conclusions reached by the April 2013 VA examiner do not fully address the requested inquiries. The April 2013 VA examiner failed to provide an opinion on all acquired psychiatric disorders present during the period of the claim, to include March 2008 diagnoses of PTSD as a result of military sexual trauma and depressive disorder related to cardiac condition, December 2008 diagnoses of PTSD and mood disorder secondary to severe cardiac disease, and January 2010 in-patient diagnoses of bipolar illness, II, current episode hypomania, and PTSD. In determining that an opinion could not be rendered in relation to the Veteran's claimed PTSD, the VA examiner only considered the symptoms presented at the examination, but failed to discuss the Veteran's diagnosis of PTSD that was confirmed in VA medical treatment records during the period of the claim. The Board notes that the Veteran has a current disability for purposes of VA compensation when the disability is present at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the VA examiner failed to provide a supporting rationale to explain why it would be "with resort to mere speculation" to determine whether the Veteran's in-service markers evidence a personal assault. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (requiring an opinion to clearly consider "all procurable and assembled data" when determining that a conclusion cannot be reached without resort to speculation). In light of these circumstances, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records. 2. Then, the Veteran should be afforded a VA examination by a psychiatrist or psychologist (other than the April 2013 examiner) to determine the nature and etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence in the electronic files should be made available to and reviewed by the VA examiner. Any indicated studies should be performed. Based on the review of the Veteran's pertinent history and the examination results, the examiner should specifically attempt to reconcile the opinion with all other pertinent evidence of record, including the Veteran's lay assertions of in-service personal assault stressors, the service records showing behavioral changes and psychiatric treatment subsequent to the claimed sexual assault. The examiner should consider an April 2008 diagnosis of PTSD, rendered in accordance with the DSM-IV, that determined the disorder was a result of an in-service sexual assault. In addition, the examiner should expressly consider the September 2008 VA examination report, in which the examiner opined the Veteran's symptoms represented an antisocial personality disorder and the April 2013 VA examination report showing that the examiner found no diagnosis of a psychiatric disorder to be warranted, indicating that it would be mere speculation to opine upon in-service markers' relationship to military sexual trauma. The examiner should also consider the Veteran's post-service treatment records, showing treatment for a "nervous condition" and stress that did not result in a DSM-IV diagnosis. Finally, the examiner should consider the Veteran's statements, and any other competent evidence of record, regarding conflicting evidence of the etiology of psychiatric problems since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should specifically comment on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosis of PTSD is due to a March 1969 in-service rape, or any other in-service personal assault. The examiner should expressly determine whether there were any behavioral changes in service indicative of the alleged in-service personal assault. The examiner should specifically address whether there is a 50 percent or better probability that the diagnoses of depressive disorder, mood disorder, and bipolar illness, II, are etiologically related to the Veteran's active service, to include an in-service personal assault and in-service psychiatric symptoms. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).