Citation Nr: 1519683 Decision Date: 05/07/15 Archive Date: 05/19/15 DOCKET NO. 13-23 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from March 6, 1980 to March 31, 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's July 2010 correspondence is reasonably construed as a notice of disagreement with the June 2010 rating decision. After issuance of the statement of the case, the Veteran perfected the appeal in July 2013. The Board notes that although the June 2010 rating decision denied service connection for posttraumatic stress disorder (PTSD), a claim of service connection for a psychiatric disorder may encompass all diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has characterized the service connection claim on appeal as entitlement to service connection for a psychiatric disorder to comport with the evidence. REMAND The Veteran asserts he has a psychiatric disorder, including as a result of military sexual trauma (MST), during active duty. Service connection may generally be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In a February 2010 statement, the Veteran noted the MST occurred on March 15, 1980, during basic training, at which time four trainees cornered him while he was in the bathroom stall and one of them grabbed his genitals. He added that when he pushed the trainee back away from him, he was told he would be beaten up if he mentioned the incident to anyone. In March 2010 statements, both the Veteran and his spouse noted the MST occurred on March 12, 1980. The Veteran noted that after he pushed the individual who grabbed him back out of the bathroom stall, the men told him that they would kill him if he mentioned the incident to anyone. He stated that problems he had prior to service became worse after the MST during service. In December 2010, the Veteran noted onset of panic attacks following the MST, and that when he went to his Chief Petty Officer (CPO) he was shaking and the CPO asked what was wrong. The Veteran added that he did not tell his CPO what had happened for fear he would be discharged and because he was uncomfortable talking about the incident. Service treatment records are negative for diagnosis of a psychiatric disorder, and there is no reference to MST/personal assault. The December 1979 service entrance examination report shows psychiatric examination was normal. On the accompanying medical history he denied having or having had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. In response to whether he had ever been discharged from the military because of physical, mental or other reasons, the Veteran noted that did not pass the "AVS" test the first time. A March 27, 1980 Aptitude Board Report notes referral to the recruit evaluation unit by his company commander due to adjustment problems in Recruit Training Command (RTC). Complaints of increased anxiety were noted. A history of heavy alcohol use since age 13 was noted along with a recent history of increased consumption, blackouts, and legal problems (driving while intoxicated and public intoxication). Psychodiagnostic testing was noted to be indicative of substance abuse related problems. Mental status examination was noted to show no evidence of psychosis, neurosis or organic brain syndrome. In summary, habitual use of alcohol to an extent that interfered with his performance and judgment was determined to preclude a successful service adaptation. The Veteran's report of separation from active duty, DD Form 214N, shows he was transferred from active duty to the Naval Reserve Personnel Center. The character of his service was listed as Honorable. The Board notes that the Veteran's VA and private treatment records reflect that he has been followed for psychiatric symptoms since at least 2009. Private treatment records in September 2009 reflect a history of alcohol abuse and the diagnoses on admission were major depression with psychosis, and mixed personality traits. An October 2009 record reflects diagnoses of major depression with psychosis and mixed personality traits. A November 2009 record reflects diagnoses to include panic disorder, rule out PTSD, and schizoaffective disorder. VA treatment records in February 2010 reflect a history of MST and the diagnosis entered was mood and anxiety disorder, not otherwise specified. It was noted that he might have some PTSD-related symptoms given his history of abuse by his alcoholic father. In addition, a March 2010 record states PTSD symptoms were subsyndromal and likely Axis II pathology was noted. A March 2010 letter indicates the Veteran was to participate in the Male Military Sexual Trauma (MMST) program. The Board notes that, in response to a PIES request to the National Personnel Records Center (NPRC) for the service treatment and personnel records, all available records were noted to have been mailed. Regardless, the Board finds that in light of VA's duty to assist, a remand on remand necessary so that the RO may make further attempts to obtain the Veteran's service records, and particularly records related to the referenced adjustment problems in RTC, complaints of anxiety, and increased consumption of alcohol and legal problems, to include driving while intoxicated and public intoxication, including by requesting a copy from his Reserve unit. 38 C.F.R. § 3.159(c)(2). In addition, an attempt must be made to obtain records in association with military testing and two months and 19 days of prior inactive service indicated on the DD 214. With regard to the lack of confirmed stressors noted by the RO, the Board notes that 38 C.F.R. § 3.304(f)(5) provides that if a PTSD claim is based on claimed in-service personal assault, evidence from sources other than a veteran's service records may corroborate a stressor incident, including statements from family members, roommates, fellow service members, or clergy, or evidence of behavior changes such as episodes of panic attacks without an identifiable cause. Pertinent statements in that regard are of record. The Board notes 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." 38 C.F.R. § 3.304(f)(5). See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (holding it is error to conclude that a medical opinion based on a post-service examination of a veteran cannot be used to establish the occurrence of a stressor). The Veteran has not been provided with a VA examination relating to his claim. As reflected above, VA treatment records in the claims file reflect that he has PTSD symptoms, and has been diagnosed with major depression with psychosis, mood and anxiety disorder, panic disorder, and schizoaffective disorder, and that he has reported that he experienced MST in service. Also, as briefly noted above, his service personnel records reflect complaints of anxiety and panic attacks during service. The Board finds that the low threshold requirement has been met for a VA examination, and that a remand is required to address the nature and etiology of any psychiatric disorder, and to obtain an opinion as to the whether the evidence of record indicates that the alleged MST occurred. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. Accordingly, the case is REMANDED for the following actions: 1. Make further attempts to obtain the Veteran's service treatment and personnel records from all appropriate sources, particularly records related to the referenced adjustment problems in RTC, complaints of anxiety, and increased consumption of alcohol and legal problems, to include driving while intoxicated and public intoxication, including by requesting a copy from his Reserve unit. . If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain complete VA treatment records, and attempt to obtain any private records the Veteran identifies. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After completion of the above, schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests and identify the Veteran's current psychiatric disorder or disorders. The examiner is to provide an opinion as to the following. a) Whether it is at least as likely as not (a 50 percent or greater probability) that the claimed MST occurred; b) Whether it is at least as likely as not that the Veteran has a current psychiatric disorder that is related to the claimed MST; or, that otherwise had its onset in service or is etiologically related to his active service. c) In addition, if a personality disorder is diagnosed, the examiner is requested to discuss whether there is any evidence of a superimposed psychiatric condition on that personality disorder in service that resulted in a current psychiatric disability. The examination report must include a complete rationale for all opinions expressed. 4. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 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 2014). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).