Citation Nr: 1640605 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 15-03 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), claimed as due to military sexual trauma or as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1994 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which, as relevant, denied service connection for depression and a bilateral knee disorder. With regard to the characterization of the claim for service connection for an acquired psychiatric disorder, while the RO initially characterized as depression, a review of the record reflects that the Veteran has additional psychiatric diagnoses, including bipolar disorder and PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has characterized the issue as shown on the title page of this decision. Pertinent to the Veteran's claim for service connection for a bilateral knee disorder, service connection for patellofemoral pain syndrome of the left knee was granted in a September 2013 rating decision. As such is a full grant of the benefit sought on appeal with respect to such issue, it is no longer before the Board. Additionally, with regard to the Veteran's claim for service connection for a right knee disorder, while she included such on her February 2011 and a statement of the case was issued in September 2013, she did not perfect an appeal of such issue. In this regard, her February 2015 substantive appeal, which was accepted as timely pursuant to Percy v. Shinseki, 23 Vet. App. 37 (2009), limited her appeal to the issue of entitlement to service connection for an acquired psychiatric disorder. Furthermore, on the record at her March 2015 Board hearing, the Veteran clarified that she did not wish to pursue a claim of entitlement to service connection for a right knee disorder. Therefore, such matter is no longer on appeal. In March 2015, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge with regard to her claim of entitlement to service connection for an acquired psychiatric disorder. A transcript of the hearing is of record. At such time, the Veteran indicated that she wished to withdraw from appellate consideration the issue of service connection for an acquired psychiatric disorder on a secondary basis; however, as explained by the Veterans Law Judge, VA is required to consider all theories of service connection that are raised by the record. Robinson v. Peake, 22 Vet. App. 381, 382 (2008), (citing Schroeder v. West, 212 F.3d 1265, 1271 (Fed.Cir.2000) ("[T]he agency's duty to assist ... attaches to the investigation of all possible in-service causes of that current disability....")). Additionally, at such time, the Veteran submitted additional evidence and waived Agency of Original Jurisdiction (AOJ) consideration on the record. 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran asserts that she has an acquired psychiatric disorder, to include PTSD, as a result of military sexual trauma in service. Specifically, she claims that she was assaulted while intoxicated in approximately November 1996, and that she became pregnant as a result, and required testing for sexually transmitted diseases. The Veteran reports that, prior to service, she had experienced childhood abuse in the form of improper touching; however, did not have any psychiatric symptomatology as a result of such incident. However, following her in-service assault, she became socially withdrawn, broke up with her boyfriend, developed a disrespect of authority, experienced depression and increased blood pressure. She also indicated that, while she was scheduled to take leave to visit her sick grandfather after the assault, she extended it. In the alternative, the Veteran claims that her acquired psychiatric disorder may be caused or aggravated by her service-connected disabilities. In this regard, she is service-connected for patellofemoral pain syndrome of the left knee, left ankle sprain, right ankle sprain, hypertension, and bilateral ingrown toenails of the great toes. In general, establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A medical opinion may be used to corroborate a personal-assault stressor. See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011). There are special evidentiary procedures for PTSD claims based on personal assault. Patton v. West, 12 Vet. App. 272, 278 (1999). In personal assault cases, more particularized requirements are established regarding the development of alternative sources of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Specifically, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 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. Furthermore, according to the special provisions of 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives concerning the alleged military sexual trauma (MST) to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. That is to say, in these types of cases there is an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that after-the-fact medical nexus evidence cannot, as a matter of law, corroborate the occurrence of a noncombat stressor in service. Indeed it can when, as here, the claim is predicated, in part, on MST. See Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998). The Veteran's service treatment records reflect that, in December 1996, she reported that she had unprotected sex on approximately November 25, and was not on birth control. The assessment included presumed intrauterine pregnancy of approximately seven weeks, and she was provided with sexually transmitted disease testing. Such records reflect that her baby was born in August 1997. Additionally, in connection with an unrelated physical condition, the Veteran underwent an internal medicine consultation in June 1998, at which time it was noted she had been unable to exercise secondary to right upper quadrant pain and had gained 40 pounds in approximately six month. She endorsed depressive mood symptoms, to include interrupted sleep patterns, lack of interest, decreased energy, inability to concentrate, but denied any suicidal or homicidal ideations. A contemporaneous mental health assessment was conducted in July 1998. At such time, she described herself as "the joker" and indicated that she had many acquaintances, but selected friends very carefully and did not trust easily. It was noted that she had some sexual abuse as a child. Following a mental status examination, no Axis I or II diagnosis was provided. The Veteran's service personnel records reflect no disciplinary action or any other markers indicative of a personal assault. Post-service treatment records reflect various psychiatric diagnoses, to include depression and PTSD. As such, the Veteran was afforded a VA examination in April 2010 in order to determine the nature and etiology of her acquired psychiatric disorder. At such time, the Veteran reported that she was sexually abused by her uncle at age 8 and by a different uncle between the ages of 11 and 13. She also indicated that her aunt and mother were verbally abusive. The Veteran did not report her claimed in-service sexual assault. Following a mental status examination, depression was diagnosed. The examiner concluded that, based on available medical records and the evaluation, it appeared at least as likely as not that the Veteran experienced depression prior to her military service, and that it was also at least as likely as not that the childhood stressors and current stressors underlie her current depression. It is less likely than not that her claimed service-connected medical issues caused the depression; however, it is at least as likely as not that her physical issues including her diabetes, knee problems, kidney problems, back problems, and cardiac problems aggravated her depression. However, no rationale was provided. In August 2013, the Veteran underwent another VA examination, at which time PTSD due to childhood abuse and depression were diagnosed. In requesting the examination, the AOJ indicated that such was limited to a question of whether the Veteran's depression was secondary to her service-connected disabilities. In this regard, it was noted that the Veteran had contended that she was involved in a rape while stationed in Alaska; however, as such had not been verified, it could not be considered in the examiner's opinion. As such, the examiner only addressed the question of secondary service connection. In this regard, she noted that the Veteran reported during the interview that her depression was primarily related to current and past situational stressors, but also indicated that such is aggravated by problems related to diabetes, cervical issues, high blood pressure, and pain in her knees and back. The examiner ultimately found that it was impossible to determine, without resorting to mere speculation, to what extent her service-connected medical problems exacerbate her current depression. In an addendum opinion in September 2013, the examiner clarified that such determination was impossible as there are no specific and detailed records of her depression and the severity of associated symptoms prior to her medical problems and any current report is subjective. Thereafter, in February 2015, the Veteran's treating social worker at the local Vet Center indicated that the Veteran met the full diagnostic criteria for PTSD according to the DSM-5 as a result of being sexually assaulted while in the Navy. However, her social worker did not address any potential pre-existing PTSD as a result of child hood abuse. Upon a review of the record, to include the evidence noted above, the Board finds that a remand is necessary in order to afford the Veteran a new VA examination that addresses the nature and etiology of her acquired psychiatric disorder. In this regard, to date, no VA examination addressed the questions of whether the Veteran's acquired psychiatric disorder clearly and unmistakably pre-existed service and was not aggravated by it; whether she has a psychiatric disorder that is the result of her claimed in-service sexual assault; or whether the Veteran's service-connected disabilities caused or aggravated her depression without resort to mere speculation. Finally, according to a February 2015 letter from the Veteran's therapist at the Springvale, Maine Vet Center, she has received mental health treatment at that facility since August 2012, and has also received intermittent treatment at VA facilities in Portland, Maine, and Togus, Maine. The VA clinical notes of record are complete only through February 2010, although some later records were forwarded by the Social Security Administration. Additionally, a complete set of treatment records from the Vet Center has not been received and, as noted by the August 2013 VA examiner, it appears that the Veteran was treated at the Goodall Hospital emergency department due to suicidal ideation. These outstanding treatment records must be obtained upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include all records from the Springvale Vet Center, VA treatment records dated from February 2010, and Goodall Hospital. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the aforementioned development has been completed, afford the Veteran an appropriate VA examination to determine the current nature and etiology of her acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. In offering any assessments or opinions, the examiner should take into account all evidence of record, to include both the lay and medical evidence. (A) After reviewing the record and examining the Veteran, the examiner should clearly identify all psychiatric disorders that meet DSM-5 criteria, taking into consideration the fact that the Veteran has been variously diagnosed with PTSD, bipolar disorder and depression during the appeal period. (B) For each diagnosed acquired psychiatric disorder, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the disorder(s) pre-existed service. In this regard, the examiner should consider the Veteran's reported pre-service verbal and sexual abuse and the diagnosis of PTSD due to childhood abuse at the August 2013 VA examination. (i) If there is clear and unmistakable evidence that the disorder(s) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that any current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service, including the Veteran's alleged personal assault and/or her complaints related to depression in 1998. For any stressors related to personal assault, the examiner must consider whether there were any behavior changes during service that are consistent with an individual who has been assaulted. (C) For each diagnosed acquired psychiatric disorder,, the examiner is asked to state whether it is at least as likely as not that such was aggravated by a service-connected disability or disabilities. For any aggravation found, the examiner should state, to the best of his or her ability, the Veteran's baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A complete rationale for any opinion expressed must be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ A. JAEGER 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).