Citation Nr: 1620486 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 07-33 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). REMAND The Veteran claims entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. §§ 3.304(f), 4.125 (2015); see also, Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The Veteran points to multiple in-service events as stressors. The December 2012 VA examiner concluded: harsh and/or abusive treatment from his superiors; the rigors of military service; anxiety due to perceived inadequate training or preparation before combat assignment; disarming inert mines and the anxiety associated with this process; and guarding a secret installation are not events that qualify as extreme traumatic stressors needed for a diagnosis of PTSD. Turing to the stressor of witnessing an accident involving a military vehicle and a tractor during which the tractor driver was thrown from the vehicle and launched over an embankment, the examiner found the Veteran too vague about the details of this event to determine whether the incident meets the stressor criterion for a diagnosis of PTSD. The examiner did, however, determined the Veteran's report of being attacked by assailants wielding knives in a club in Germany during service met the criterion set forth by the "DSM4TR" and diagnosed PTSD based on this stressor. This stressor constitutes a personal assault. There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation provides that PTSD based on a in-service personal assault permits evidence from sources other than a Veteran's service records, including evidence of behavior changes, which may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. In response to a previous remand the Veteran was provided with a letter in November 2013 notifying him that PTSD based on an in-service personal assault permits evidence from sources other than a Veteran's service records, including those just listed. Normally, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of a claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). However, 38 C.F.R. § 3.304(f)(5) also provides 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). After the fact medical evidence can be used to establish a stressor based on personal assault. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). Therefore, the Board finds it necessary for the electronic claims file to be returned to the VA examiner who provided the December 2012 examination so that an opinion can be provided on whether the evidence of record indicates a personal assault actually occurred. Finally, the December 2012 VA examination used the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV, and though the DSM-5 has now been published, for the purposes of this claim the Veteran's disorders should continue to be analyzed pursuant to the criteria of DSM-IV as the claim was certified to the Board prior to August 4, 2014. 80 Fed. Reg. 53, 14308 (March 19, 2015). Accordingly, the case is remanded for the following action: 1. The Veteran's electronic claims file must be returned to the examiner who prepared the December 2012 VA examination report, so that an addendum opinion can be provided. If the December 2012 VA examiner is unavailable, the electronic claims file must be forwarded to another VA examiner. If it is determined an additional examination of the Veteran is necessary, one must be scheduled. Based on a review of the evidence of record, the examiner must state whether the Veteran's claimed in-service personal assault, namely being attacked by assailants wielding knives in a club in Germany, occurred; and if so, the examiner must state the specific evidence that indicates that a personal assault occurred. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. In the event a new examination is scheduled, the RO must notify the Veteran that it is his responsibility to report for the VA examination scheduled and to cooperate in the development of the claim remanded herein. 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 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained that shows that notice scheduling the examinations was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be associated with his electronic claims file. 3. After completing the above actions, and any other indicated development, the claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).