Citation Nr: 1723927 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 08-26 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sinusitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to March 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2016, the Board remanded to schedule the Veteran for a Travel Board hearing regarding the issues listed above. In July 2016, the Board also remanded other claims for additional development. Since the time of the hearing, the issues of service connection for bilateral knee disabilities have been granted and are not currently in appellate status. The Veteran testified at a September 2016 Board hearing before the undersigned Veterans Law Judge, and the transcript of this hearing has been associated with the claims file. The Board has reviewed the Veteran's electronic claims file maintained in the Veterans Benefits Management System (VBMS) as well as the electronic records maintained in Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND PTSD The Veteran states that she has a current acquired psychiatric disorder, to include PTSD, resulting from military sexual trauma (MST). In particular, the Veteran reports that she was sexually harassed by a chief in service. See September 2016 Hearing Transcript p. 8-9. She indicated that she did not report the incident because she was in fear of being punished. Id at 9.She testified to transferring to Fort Worth because of the incident and reports seeking therapy for her PTSD. Id at 10. The Veteran also testified to receiving a sexual harassing phone call, while pregnant, for which she later reported to the police. Id at 11. Based on a review of the claims folder, the Board finds that additional development is necessary prior to adjudication of the claim, and in particular, a VA examination is needed. If a PTSD claim is based on in-service personal assault, 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. 38 C.F.R. § 3.304 (f)(5) (2016). A remand is needed in order to provide the Veteran with a VA psychiatric examination in conjunction with her claim. Sinusitis The Veteran contends that she began to experience symptoms of a sinus disability during service and that she has continued to experience such symptoms since service. Service treatment records indicate that the Veteran sought treatment for several general upper respiratory infections including sinusitis and sinus pressure. A November 2009 VA examination found, essentially, no current sinus disability. As review of more recent VA treatment record document chronic sinusitis, VA has a duty to assist by obtaining an additional VA examination with opinion. On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of her claimed sinusitis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination in conjunction with her claim for PTSD. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination, and he or she should indicate on the examination report that such a review was completed. Based on a review of the record and the findings from clinical evaluation, the examiner should: (a) Identify the nature of the Veteran's current psychiatric diagnosis. If the Veteran does not meet the diagnostic criteria for PTSD, please expressly state so and why such diagnosis is not warranted; (b) If a diagnosis of PTSD is appropriate, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has PTSD that is based on an in-service personal assault stressor. In formulating the opinion, the examiner is asked to address whether any in-service or post-service markers are indicative of a personal assault, including the Veteran's request for transfer and behavioral changes. The examiner is advised that actual corroboration of the claimed personal assault (e.g., by way of contemporaneous police reports, military disciplinary proceedings, etc.) is not dispositive as to the question of whether the assault occurred. (c) If the Veteran does have a current diagnosed psychiatric disorder (other than PTSD), then the examiner should provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater) that her diagnosed disorder is etiologically related to her period of service, to include her reported personal assault. The examiner should provide a complete rationale for any opinion provided, and must address all relevant evidence. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any current disability of the nose and throat, to include sinusitis. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran the examiner must: Identify/diagnose all current sinus disorders. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sinus disorder was incurred during service. In rendering the opinion the examiner is advised that service treatment records do indicate the Veteran was treated for several general upper respiratory infections including sinusitis and sinus pressure. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Then, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).