Citation Nr: 1803481 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder, and panic disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had honorable active duty service in the United States Army from April 1999 to December 1999 and from May 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that, in pertinent part, denied entitlement to service connection for PTSD due to military sexual trauma. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a written transcript of that hearing is of record. The scope of a mental health disability claim generally includes any psychiatric disorder that may reasonably be encompassed by a veteran'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 finds that the Veteran's claim should encompass all mental health diagnoses made during the pendency of the appeal, and has recharacterized the Veteran's claim as shown on the title page to better reflect the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserted that she developed a psychiatric disorder as a result of military service. She reported several in-service stressors which included witnessing casualties, experiencing military sexual trauma, and having her personal health information on display for her unit to see. The Veteran's DD-214 listed her military occupational specialty (MOS) as an operating room specialist. She reported that she worked in emergency surgical medicine and witnessed many casualties and injuries. She stated that she frequently saw children screaming and bleeding because they had been blown apart by IEDs (improvised explosive devices) that looked like candy or toys. She started to see her daughter's face on the body of the injured children. In a July 2006 Department of the Army Memorandum, her commander determined that the Veteran's psychiatric disorder prevented her from dealing with the day to day stress of combat. Her commander explained that her military duties required her to assist in the operating room, but that she was unable to execute such duties due to unstable behavior and panic attacks. July 2006 service treatment records indicated that her psychiatric disorder preexisted service. July 2006 Medical Evaluation Board documents included diagnoses of major depressive disorder and panic disorder. It was noted that when she was 17 years old she attempted suicide and received her first mental health treatment. She reported that her psychiatric symptoms reemerged during her deployment. She attributed her in-service psychiatric symptoms to separation from her children. The medical evidence of record includes a May 2012 VA examination and an October 2013 letter from the Veteran's VA psychiatrist. The May 2012 VA examiner noted the Veteran's stressor of witnessing injuries and wounds while working as a surgical technician in a hospital. The examiner diagnosed major depressive disorder and generalized anxiety disorder, but determined that the Veteran did not meet Criterion A for a diagnosis of PTSD. The examiner did not provide an opinion regarding the etiology of her diagnosed major depressive disorder and generalized disorder. The Veteran submitted an October 2013 letter from her VA psychiatrist, R.R., M.D. Dr. R. stated that the Veteran's severe depression was largely related to the pain associated with her service-connected disabilities. Dr. R. also stated that the Veteran's PTSD was related to her nursing duties in Afghanistan. It was noted that the Veteran was a nurse in a field hospital where she handled casualties and injuries involving U.S. soldiers, coalition soldiers, and children. Dr. R. found that the Veteran's stressor met Criterion A for a diagnosis of PTSD. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that a) the disease or injury existed prior to service, and b) the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for Veterans Claims (Court) has explained that clear and unmistakable evidence means the evidence, "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999); see also id. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.'"). The Board finds that a remand is required to afford the Veteran an adequate VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2012 VA examiner did not discuss the Veteran's diagnosed major depressive disorder and generalized anxiety disorder. The VA examiner also did not address whether the Veteran's psychiatric disorder preexisted service, and, if so, whether it was aggravated by service. Additionally, in light of Dr. R.'s finding that the Veteran met the criteria for a diagnosis of PTSD, the VA examiner should address Dr. R.'s findings and favorable medical opinion. Additionally, the Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g. Patton v. West, 12, Vet. App. 272 (1999). The Board also acknowledges that the relevant regulation stipulates that if PTSD is based on an in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be used to corroborate the stressor. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). 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). The Veteran's service records are negative for reports of a personal assault or any harassment, but do document psychiatric symptoms. In addition, 38 C.F.R. § 3.304 (f)(5) provides that VA may submit any evidence that it receives concerning in-service personal assault to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. On remand, the VA examiner must review the evidence of record and provide an opinion as to whether the evidence indicates that a personal assault occurred. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter providing the notice set forth in 38 C.F.R. 3.304 (f)(5) for PTSD claims based on in-service personal assault. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include VA treatment records from May 2017 to the present. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Then, the RO or the AMC should afford the Veteran a VA examination by VA psychologist or psychiatrist, to determine the nature and etiology of any acquired psychiatric disorder present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all acquired psychiatric disorders present during the period of the claim. The examiner should confirm or rule out a diagnosis of PTSD and consider the October 2013 letter from Dr. R. and the VA treatment records showing a diagnosis of PTSD related to her military duties as a surgical technician. Then, the examiner should state an opinion with respect to the following: (a) Whether there is evidence in the claims-file of action or behavioral changes which indicate that it is at least as likely as not (i.e., a 50 percent or greater probability) that any claimed in-service personal assault occurred. The examiner should offer an opinion in accordance with the guidance set forth in 38 C.F.R. § 3.304 (f)(5). As to the opinions offered by the examiner, the examiner should clearly indicate whether or not the opinions are based on history furnished by the Veteran or, rather, on objective contemporaneous evidence in the claims file. In furnishing this answer, the examiner should discuss any indications of performance and disciplinary problems found in the Veteran's service records. (b) With respect to each acquired psychiatric disorder present during the period of the claim, the examiner must opine as to whether the disorder clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's first period of active duty in April 1999? (i) If yes, is there clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting psychiatric disorder did not permanently increase in severity as a result of her first period of service from April 1999 to December 1999? (ii) If no, is it at least as likely as not (50 percent probability or greater) that the psychiatric disorder is etiologically related to the Veteran's first period of active duty from April 1999 to December 1999? (c) With respect to each acquired psychiatric disorder present during the period of the claim, the examiner must opine as to whether the disorder clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's second period of active duty in May 2005? (i) If yes, is there clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting psychiatric disorder did not permanently increase in severity as a result of her second period of service from May 2005 to October 2006? (ii) If no, is it at least as likely as not (50 percent probability or greater) that the psychiatric disorder is etiologically related to the Veteran's second period of active duty from May 2005 to October 2006? The examiner must provide a complete rationale for all opinions expressed. If the examiner is unable to provide any requested opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and her representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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). _________________________________________________ B. MULLINS 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).