Citation Nr: 1754919 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-00 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, bipolar type. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1976 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board remanded the case in order to afford the Veteran. In November 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record on appeal. The Board observes that the Veteran has also perfected an appeal as to the issue of entitlement to a rating in excess of 10 percent for right great toe, ingrown toenail, status post removal; however, as he has requested a Board hearing before a Veterans Law Judge in connection with such appeal, the matter will be the subject of a separate Board decision issued at a later date. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the delay, a 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 he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his acquired psychiatric disorder, to include schizoaffective disorder, bipolar type, is due to harassment and abuse he experienced in service. Specifically, at the November 2016 hearing, he testified that he was subjected to frequent harassment due to his last name. The Veteran's testimony indicated that he believed he was passed over for advancement so he could continue to be called "Private First Class Hooker." He also testified to physical assault, reporting that, while running in the morning, a service member pushed his head while another service member tripped him, causing him to fall and hit his head. In this regard, he indicated that he perforated his left eardrum as a result of such injury. He further testified that the same service member woke him up one morning in the barracks with a gun pointed at his head. The Veteran's testimony contained continuing reports of this service member threatening that he was going to "get him", and a report that the service member did finally "get him" in a hotel room. In this regard, the Board notes that the Veteran has inconsistent reports of past sexual abuse and sexual harassment in the military. On VA Medical Center Mental Health Homeless Community Visit intake reports from September 2014 and May 2015, he reported past sexual abuse. However, in other intake reports he has denied any sexual abuse. In an April 2002 intake assessment at a VA Medical Center, the Veteran reported that he was sexually harassed or victimized while in the military. However, in other exams and assessment he has denied any harassment or abuse in the military. In this regard, the Board notes that the Veteran testified at his hearing that he has not told his VA treatment providers about everything that happened to him while in service. The Veteran's service treatment records reflect that, in November 1979, he reported that he was in fight five days previously and was struck in the left ear. He was diagnosed with left tympanic membrane perforation, and is currently service-connected for the residuals thereof. Such records also reflect treatment for condyloma acuminatum (genital warts) in the anal and perianal area beginning in February 1979. The record also reflects current diagnoses of psychosis not otherwise specified, schizoaffective disorder, major depressive disorder, and posttraumatic stress disorder (PTSD), which was diagnosed in March 2016. Consequently, in light of the Veteran's testimony, his service treatment records, and his post-service treatment records, the Board finds that a remand is necessary in order to afford him a VA examination so as to determine the nature and etiology of his acquired psychiatric disorder. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as noted previously, the record reflects a diagnosis of PTSD, and the Veteran has testified that his acquired psychiatric disorder is due to in-service personal assault. In this regard, VA has a heightened duty to notify the Veteran under 38 C.F.R. § 3.304(f)(5) in cases where a claim for PTSD is based on in-service personal assault. Consequently, such should be accomplished on remand. The Board further notes that the Veteran reported that, due to his in-service harassment and assault, he was denied a promotion from E-3 to E-4. Therefore, the Board finds that his service personnel records should be obtained on remand. Finally, the Board finds that a remand is necessary in order to obtain outstanding post-service treatment records. In this regard, the Veteran testified at the November 2016 Board hearing that he began receiving psychiatric care through the VA facility in Denver soon after his separation from service in November 1979 or, alternatively, in approximately 1983. The Board notes that the earliest treatment records from such facility in the file are dated in November 1997. Consequently, a remand is necessary in order to attempt to obtain records of the Veteran's psychiatric treatment at the Denver VA facility from November 1979 to November 1997. Further, the Veteran also testified to receiving treatment through "MACD," a civilian psychiatric facility. In this regard, he is advised that VA attempted to obtain records from the Mental Health Center of Denver (MHCD); however, in June 2011, such facility indicated that they had no records referable to him. Even so, while on remand, he should be given another opportunity to identify any private records relevant to the claim on appeal that have not been obtained. Thereafter, all identified records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran a letter informing him that evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault, to include 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, and that evidence of behavior changes following the claimed assault, to include 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, is one type of relevant evidence that may be found in the mentioned sources, as outlined in 38 C.F.R. § 3.304 (f)(5). 2. Obtain the Veteran's service personnel 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. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. 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 those pertaining to psychiatric treatment at the Denver VA facility dated from November 1979 to November 1997. 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 him 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. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining all outstanding records, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of all currently diagnosed acquired psychiatric disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (A) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-5 criteria that have been present at any time proximate to his September 2010 claim. (B) The examiner should specifically indicate whether the Veteran meets the DSM-5 diagnostic criteria for PTSD and, if so, whether such diagnosis is the result of an in-service stressor related to personal assault. The examiner should specifically consider the Veteran's reports of possible sexual harassment or abuse, being awoken at gunpoint, and being pushed to the ground that resulted in a perforated eardrum, as well as treatment for a left tympanic membrane perforation and condyloma acuminatum (genital warts) in the anal and perianal area as documented in his service treatment records. (C) For all other currently diagnosed acquired psychiatric disorders, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that such had its onset in, or is otherwise related to, the Veteran's military service. (D) If a psychosis is diagnosed (defined as brief psychotic disorder; delusional disorder; psychotic disorder due to another medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; and substance/medication-induced psychotic disorder), the examiner should offer an opinion as to whether such manifested within one year of the Veteran's service discharge in November 1979, i.e., by November 1980. If so, the examiner should describe the manifestations of such disorder. The rationale for all opinions offered should be provided. 5. After completing the above, and 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 claim remains denied, the Veteran and his 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).