Citation Nr: 1801980 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-21 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, substance abuse, and anxiety disorder, as due to military sexual trauma. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue was remanded in July 2017 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted, the appeal was previously remanded in April 2017 to in part obtain an additional examination. The Board has reviewed the subsequently obtained August 2017 VA examination report and the representative's contentions regarding this examination. After this review, the Board finds an additional examination in necessary Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA psychiatric examination in conjunction with his claim for an acquired psychiatric disability by an examiner other than the examiner whom conducted the August 2017 examination. 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 service discharge 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. The Board is requesting that the examiner opine as to whether the Veteran sustained an in-service personal assault, as he has alleged, even without corroboration of the record. (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 his diagnose psychiatric disorder is etiologically related to his period of service, to include his reported military sexual trauma. The examiner should provide a complete rationale for any opinion provided, and must address all relevant evidence. 3. Then, readjudicate the claim. If the benefit sought is not granted, the Veteran and his 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 (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 the appeal. 38 C.F.R. § 20.1100(b) (2017).