Citation Nr: 1424809 Decision Date: 06/03/14 Archive Date: 06/16/14 DOCKET NO. 10-24 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Veterans Appeals (Court) held that a claim for service connection for PTSD also encompasses a claim for service connection for any psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. Here, the Veteran's claim was originally characterized as depression due to trauma in service, but diagnoses of record include depression and PTSD. As such, the Board recharacterized the issue on appeal as indicated. The Virtual VA claims file has been reviewed. Documents therein are duplicative of those in the paper claims file. Documents contained in the Veterans Benefits Management System are not relevant to the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND There is evidence of record indicating that the Veteran has been diagnosed with PTSD and depression. The Veteran's VA treatment records include a diagnosis of PTSD. Nevertheless, despite the diagnosis of record, it is unclear whether her PTSD is causally or etiologically related to service. There are VA treatment records that indicate that the Veteran has reported a sexual trauma during her military service. However, private treatment records from Dr. M show treatment for depression. In short, although PTSD and depression have been diagnosed, it is unclear whether the either diagnosis is causally or etiologically related to her service; it is also unclear what stressor event served as the basis for diagnosing PTSD. In this regard, the Board points out that, in Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims such as this one for service connection for PTSD based on personal assault. In particular, the Court held that the provisions in VA's Adjudication Manual which addressed PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). Moreover, evidence other than the Veteran's service records can corroborate the occurrence of a claimed in service stressor based on personal assault. See 38 C.F.R. § 3.304(f)(5). Examples of behavior changes following the claimed assault that may constitute credible evidence of a stressor include deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavioral changes. The Board acknowledges that a review of the Veteran's service personnel and treatment records did not indicate a deterioration in work performance or episodes of depression or anxiety. Nonetheless, the Veteran asserts that she became pregnant as a result of the alleged sexual assault, and service treatment records confirm a pregnancy during service. Moreover, 38 C.F.R. § 3.304(f)(5) also provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether there was occurrence of a claimed stressor, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n. 1. So a VA psychiatric opinion must be obtained, indicating whether any of the in-service events alleged by the Veteran, including sexual trauma, support the PTSD diagnosis. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). See also 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at Department health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's VA treatment records from any VA facility identified by the Veteran or in the record, for the period prior to March 2009 and since May 2010. 2. The Veteran should be afforded a VA examination to determine the presence and etiology of an acquired psychiatric disorder, including PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran has PTSD which is caused or aggravated by her service. The examiner is requested to identify the stressor that serves as the basis for any PTSD diagnosis and note the diagnostic criteria utilized to support the diagnosis under DSM-IV. The examiner should also comment upon what specific symptoms are attributable to PTSD, as opposed to symptoms referable to any nonservice-connected disabilities. If the Veteran does not have PTSD, the VA examiner is requested to provide any opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran has an acquired psychiatric disorder (i.e., depression) which is caused or aggravated by her service. The requested determination should also consider the Veteran's medical history prior to, during, and since her military service. The provider is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale should accompany each opinion provided. 3. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). _________________________________________________ H. N. SCHWARTZ 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).