Citation Nr: 1442013 Decision Date: 09/19/14 Archive Date: 09/30/14 DOCKET NO. 11-23 716A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Wichita, Kansas which denied entitlement to service connection for PTSD. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. In August 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the August 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran has alleged that he was sexually assaulted in March 1975 during his active military service, and that his current psychiatric disability was caused by this in-service trauma. The record reflects that over the years, the Veteran has been diagnosed with a number of psychiatric disorders, including PTSD, major depressive disorder with psychotic features, anxiety disorder, and polysubstance abuse. In October 2013, the Veteran was afforded a VA examination to determine the etiology of any current psychiatric disability. Unfortunately, the examiner's opinion is inadequate for a number of reasons. The examiner concluded that the Veteran's PTSD and depression are most likely related to an 1999 assault during which the Veteran was stabbed, stating that "there is no corroborating evidence that [the alleged in-service] assault took place as he described in 1975 and, if it did, there is even less evidence that this incident of unwanted fondling led to any problems as his military career at that point was normal, since he made rank and did well." However, the Board notes that both the Veteran's brother and a friend of the Veteran have submitted statements testifying that they remember the Veteran reporting the incident to them. Furthermore, the Veteran service personnel records reflect that he was subject to Article 15 proceeding relating to two instances of being AWOL in July and August 1975, only a few months after the alleged assault took place. The Veteran has argued that he went AWOL because he was struggling to deal with the in-service assault and its aftermath. The examiner failed to address this potentially favorable lay evidence. Additionally, there is evidence in the available medical records suggesting that the Veteran struggled with substance abuse and depression for many years prior to the 1999 assault, possibly even prior to service. Although no psychiatric condition is noted at the time of the Veteran's enlistment, the Veteran has reported to his VA treatment providers that his substance abuse started during his teens, but substantially worsened after he enlisted in the military. VA outpatient treatment records also show that he has described his childhood as "difficult" and "traumatic" and reportedly suffered abuse at the hands of family members. Accordingly, the Board finds that additional development is required to address whether the Veteran had a psychiatric condition that existed prior to service. On remand, the case should be returned to the original examiner for an addendum medical opinion. If he is not available, the claims file should be referred to an equally qualified psychologist or psychiatrist. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's most recent VA outpatient treatment records with his claims folder. 2. Once this is done, the RO should return the claims folder to the VA examiner who performed the October 2013 examination for an addendum medical opinion. If he is unavailable, the claims file should be referred to an equally qualified psychologist or psychiatrist. A new examination is only required if deemed necessary by the examiner. The entire electronic claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) The VA examiner is asked to opine whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran had any psychiatric conditions that existed prior to his active military service. If he did, the examiner is asked to identify it/them and opine whether there is clear and unmistakable evidence that the disorder was NOT aggravated beyond its natural progression during the Veteran's active military service. b) For any psychiatric condition that did not clearly and unmistakably exist prior to service, the examiner is asked to identify it/them and opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's acquired psychiatric disability had onset in service or was caused by or related to the Veteran's active military service, to include an in-service sexual assault. c) The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, as well as the statements of friends and family of the Veteran. d) A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ D. Martz Ames Acting 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).