Citation Nr: 1800262 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-09 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for schizoaffective disorder. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 2004 to October 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs, Regional Office, located in Roanoke, Virginia (RO), which denied the benefits sought on appeal. On his substantive appeal, VA Form-9, the Veteran indicated his desire to testify before a member of the Board. He was scheduled for a May 2017 Board hearing held via videoconference capabilities; but he failed to attend without explanation. The Veteran's request for a hearing is considered withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for acquired psychiatric disorder, to include PTSD, and entitlement to service connection for schizoaffective disorder. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claims. The Veteran asserts that he suffered from a military sexual assault during boot camp that resulted in his current PTSD, and that his symptoms of schizoaffective disorder had an onset during his period of service. He contends that the change in his behavior reflected in his service personnel records mark the onset of his current diagnosed disorders. The Veteran's service treatment records do not show any complaints or treatment for mental health symptoms. His service personnel records show that in a July 2005 service performance evaluation, he was considered a below average sailor and his retention in the naval service was unlikely. In September 2006, the Veteran had a service performance evaluation which noted he was pending discharge under honorable conditions for violation of UCMJ Article 9 with six specifications for disrespect. He was assessed with no potential for future naval service. His DD 214 confirms that he was discharge under honorable conditions and the reason for his discharge was misconduct (serious offense). The Board notes that, when the PTSD stressor is physical or sexual assault in service, credible supporting evidence may consist of a medical opinion based on a review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304 (f)(3) (2017). The Veteran was afforded a VA psychiatric examination in August 2012. The examination report shows that the VA examiner ruled out a diagnosis of PTSD based on the DSM criteria. The 2012 VA examiner noted that if the Veteran's reported military sexual had actually occurred, it was sufficient to support the criteria for stressor event. However, the VA examiner felt that the Veteran's service records did not actually reflect a change in his behavior as he indicated a history of anti-social traits prior to service. In addition, the VA examiner found that the Veteran failed to report symptoms of hypervigilance and exaggerated startled response to support diagnosis of PTSD. The VA examiner further felt that the Veteran's reported symptoms were better explained by his diagnoses of schizoaffective disorder and personality disorder. The 2012 VA examiner failed to offer a medical opinion regarding the onset and etiology of the Veteran's diagnosed schizoaffective disorder. In addition, while service connection for personality disorder is barred by regulation, where a personality disorder is aggravated by active military service, compensation remains available. See VAOPGCPREC 82-90. A medical opinion is needed on whether the Veteran's personality disorder was aggravated by his service. Finally, subsequent VA treatment records show diagnosis of PTSD based on the DSM-IV criteria, and note a positive finding of criteria for symptoms of hypervigilance and exaggerated startled response. See September 2015 VA mental health treatment record, initial assessment. These records show that the Veteran's PTSD diagnosis was related to his reported stressor of personal assault. However, there is no indication that the Veteran's claims folder was reviewed prior to making that determination that the evidence supports the existence of a sexual trauma stressor in service. The Veteran has received additional diagnosis of major depressive disorder. The record also now contains a September 2013 medical statement from the Veteran's VA mental health provider. In that statement, the VA provider opined that the Veteran's PTSD is related to incidents during his military service, but no rational statement was provided in support of this medical nexus conclusion. Based on the foregoing, the Board finds that another VA psychiatric examination is needed to determine the onset and etiology of the Veteran's claimed psychiatric disorder, to include PTSD, depression, schizoaffective disorder, as well as personality disorder. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him another opportunity to completed and submit proper authorization for any outstanding relevant medical records. A specific request should be made for any records from his January 2010 hospitalization for mental health treatment. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 2. Contact any appropriate VA medical facility, and obtain and associate with the claims file all outstanding records of treatment dated since September 2016. 3. Schedule the Veteran for an appropriate VA examination in conjunction with his claimed psychiatric disorders. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished. Based on a review of the claims folder and findings from clinical evaluation, the examiner should address the following. a). Identify all appropriate psychological diagnoses. If a previously diagnosed disorder, to include PTSD, schizoaffective disorder, depressive disorder, personality disorder, is not diagnosed, a full explanation must be provided. b). If the Veteran's symptoms meet the DSM criteria for a diagnosis of PTSD, state whether (1) there were behavioral changes in service indicative of the Veteran's alleged in-service sexual trauma; (2); and whether such PTSD is likely due to an in-service sexual trauma. The examiner should also consider the September 2013 VA medical statement and VA mental health treatment records that denote a diagnosis of PTSD associated with reported military sexual trauma. c). For each other diagnosed psychiatric disorder, provide an opinion regarding whether it is at least as likely as not (whether there is a 50 percent or greater probability) that each non-PTSD psychiatric disorder either had an onset during service or is related to any incident of service. The examiner should consider the Veteran's assertions of changes in his behavior during service as marking the onset of his mental health disorder. d). Has the Veteran manifested a psychosis (defined as brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder) during service or within one year of his service discharge and, if so, to describe the manifestations. e). Does the Veteran suffered from a personality disorder which has been aggravated by active military service? Aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain 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. The appellant 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). _________________________________________________ MICHAEL A. PAPPAS 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) (2016).