Citation Nr: 1804480 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-11 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2001 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2016, the Veteran testified before the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims file. In light of multiple psychiatric diagnoses of record, the Board has recharacterized the issue on appeal. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, symptoms, and the other recorded information. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran last appeared for a VA examination in October 2010; no psychiatric diagnosis was found. Since then, the record, particularly VA treatment records found in Virtual VA, reflects psychiatric diagnoses have been made. Clinical psychologist K.D. diagnosed Axis I anxiety disorder and major depressive disorder in October 2012, and PTSD in March 2013. Clinical psychologist M.E. diagnosed PTSD, depression, and MST in July/August 2015, in accordance with DSM criteria. Psychiatrist K.S. diagnosed Axis I PTSD, depression, and MST. The diagnoses did not contain rationale. The Board finds a new VA examination is required to opine as to the nexus between service and the diagnoses with adequate rationale. While there is PTSD diagnosis, it is unclear if this diagnosis is based on military stressors, especially as the record indicates that the Veteran had childhood sexual trauma. While MST is noted, there is no rationale. The RO/AOJ is also requested to verify the Veteran's reported stressors to the extent possible. The Veteran claims PTSD due to three stressors: military sexual trauma (MST), a shipmate falling overboard in January 2002 who was recovered in a coma, and witnessing her husband, also in service, injured as he loaded bombs. All evidence relating to the in-service sexual assault should be developed in accordance with 38 C.F.R. § 3.304(f)(5), which recognizes that service records may not contain evidence of personal/sexual assault, and that alternative sources may provide credible corroborating evidence of an in-service personal assault stressor. In regard to the Veteran's stressors of a shipmate who jumped overboard in January 2002, the Board in particular requests review of logs from the ship. While there are suggestions in the record that these records are classified, there is an April 2010 note indicating they are not classified. In regard to verification of stressors, a memorandum should be associated with the claims file indicating the efforts made and responses received. Accordingly, the case is REMANDED for the following action: 1. Request a review of ship logs to determine if there were an overboard incident as claimed by the appellant. 2. Fully develop all evidence relating to the claimed stressors. All evidence relating to the in-service sexual assault should be developed in accordance with 38 C.F.R. § 3.304(f)(5). All efforts made and responses received should be reflected in the claims file. 3. Provide the Veteran with a VA examination to determine the etiology of all psychiatric illnesses diagnosed. The Veteran's electronic file, including Virtual VA, should be reviewed by the examiner. (a) Please outline all current psychiatric diagnoses. All studies, diagnostic tests, and evaluations deemed necessary by the examiner must be performed. (b) For all current psychiatric diagnoses, please opine whether each is as likely as not (50 percent or greater probability) related to service. (c) Even if PTSD is not found on examination, in light of the diagnoses of PTSD in the VA treatment records, please opine whether the Veteran's diagnosed PTSD is as likely as not (50 percent or greater probability) related to her reported in-service stressors, detailed above. In the rationale, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s), and must specifically address whether the Veteran's identified stressor(s) are related to sexual assault; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether her symptoms are related to the identified stressor(s). The examiner is requested to particularly respond to the Veteran's reports of in-service sexual assault(s), and to determine the likelihood that in-service sexual assault(s) occurred. (d) Even if anxiety and major depressive disorder are not found on examination, in light of the diagnoses of such in the VA treatment records, please opine whether the Veteran's diagnosed anxiety and major depressive disorder are as likely as not (50 percent or greater probability) related to her service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion provided. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claim for service connection for an acquired psychiatric disorder on appeal. If any benefit on appeal remains denied, furnish the Veteran and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ H. N. SCHWARTZ 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).