Citation Nr: 1804719 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Army from June 1999 to June 2003. This case comes before the Board of Veteran's Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction over the appellant's case has been transferred to the RO in Nashville, Tennessee. The evidence of record reflects that the appellant has multiple psychiatric diagnoses in addition to PTSD. Thus, the Board has recharacterized the issue on remand more broadly in order to clarify the nature of the benefit sought. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). The appellant is not prejudiced by the recharacterization of the issue, as the matter is being remanded for additional evidentiary development with subsequent reconsideration by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant contends service connection is warranted for her current psychiatric disabilities of PTSD and depression. After a review of the evidence, the Board finds that additional evidentiary development is required prior to adjudicating the claim. The appellant asserts that while she was on active service, she was the victim of multiple incidents of military sexual trauma. In a VA mental health treatment note from February 2008, the appellant stated that while stationed at Camp Stanley in South Korea, her boyfriend at the time forced sexual relations with her, for which he later apologized. At February and April 2008 VA mental health treatments, she described being sexually harassed by non-commissioned officers (NCO's) while she was stationed at Camp Stanley, with one corporal actually forcing himself onto her and trying to kiss her. In a September 2014 statement, she recounted an incident from June 2000, also at Camp Stanley in South Korea, where a male corporal, who was heavily intoxicated at the time, lured her to his room under false pretenses, locked the door behind her when she came in, and proceeded to express romantic feelings for her and began to touch her inappropriately. In her April 2008 notice of disagreement, the appellant also related an incident from November 2001 where she was raped by a service member while she was stationed at Fort Hood, Texas. Additionally, the appellant has also asserted that she was physically assaulted by a fellow service member while she was stationed at Camp Stanley, South Korea in November 2000. In this incident, the individual attacked the appellant, grabbed her by the throat, and began choking her. She stated that during this encounter the NCO's of her unit who were present did nothing to intervene. The appellant has also indicated that she was molested by a paternal uncle while she was a minor child. She describes her father as verbally and emotionally abusive to her and physically abusive towards her older brother. The appellant has also stated that she found out many years later that her father had raped her younger sister, although she denies this ever occurred to her. The appellant began receiving mental health counseling in March 2004 after she was screened into a program after reporting military sexual trauma to her treating gynecologist in February 2004. She was diagnosed with PTSD in June 2005 and depression in May 2008. The appellant's mental health treatment records since her initial diagnosis document a variety of symptoms related to PTSD. The appellant has confirmed that she did not report any of the incidents described above while on active service, which accounts for the lack of direct documentation of the incidents in the record. However, she maintains that there is evidence sufficient to corroborate her claimed stressors in her military personnel file. In October 2000, the appellant had Developmental Counseling Forms written up for her by two NCO's from her unit alleging she was disrespectful and insubordinate during a training exercise at Camp Stanley in South Korea. Another Developmental Counseling Form was also filed in April 2001 after her transfer to Fort Hood, Texas which praised the appellant for having a very successful first month with the unit. This report praised her for her attention to detail and good attitude, although it does note an instance of disagreement with another service member. The appellant was issued another two Developmental Counseling Forms in August and September 2001 that indicate she was in a verbal altercation with a fellow service member. This resulted in the appellant being sent to conflict resolution and stress management training in September and October 2001. The appellant has also submitted multiple statements in support of her claim. A May 2008 letter from her mother states that the appellant has not been the same since her time in the Army. An August 2017 statement from a childhood friend also states that there was a marked change in the appellant after her time in the Army. This statement claims that before the appellant entered the Army, she was friendly and liked to be around other people. However, after her discharge, the appellant was no longer happy or talkative, did not smile as she used to, and did not like to be around people or company. In addition, the appellant submitted an e-mail she received from her former roommate at Fort Hood. It states that the appellant was up and down as a roommate, sometimes she was the best roommate and other times it was difficult to live in the same room with her. As time went on, the appellant became more difficult to live with and developed a pattern of abnormal behavior which included: raging attitudes, yelling and screaming, crying out loud, shifting mood changes constantly, and living in isolation. She stopped hanging out with her friends, taking care of her appearance and uniform, and looked zoned out and lost. She was not happy about anything in life. She developed a level of mistrust of everyone, believing that people were spreading lies about her and she had trouble with her NCO. The appellant was afforded a medical examination in November 2011 to determine whether her PTSD was causally related to her claimed in-service stressors. That examination, conducted under the DSM IV, found that the appellant's PTSD was not at least as likely as not caused by the claimed in-service stressors, as there was no confirmation in the record that the claimed in-service stressors actually occurred. However, since this examination, new evidence has been added to the record, including the appellant's former roommate's statement. The Board therefore finds that a new examination should be conducted. Further, as this case was not certified to the Board until November 2015, the appellant should be examined under the DSM-5. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a psychiatric examination, under the DSM 5, to determine the nature and etiology of any and all current psychiatric disabilities, to specifically include PTSD and depression. Access to the claims file must be provided to the examiner for review in connection with the examination. After examining the appellant, taking her medical history, and reviewing the claims file, the examiner should delineate all psychiatric disabilities identified on examination. He or she should then provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any psychiatric disability identified on examination is causally related to the appellant's active service, or any incident therein. If PTSD is diagnosed, the examiner should be asked to review the record and provide an opinion as to whether there is any evidence of behavior changes in service after the personal assaults reported by the appellant which could provide corroborative evidence that the assaults occurred. (Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). If the VA examiner concludes that there is evidence of behavior changes in service sufficient to corroborate the claimed sexual assaults, he or she should provide an opinion as to whether it is at least as likely as not that the appellant currently has PTSD as a result of those assaults or some other stressor. 2. After the above development has been completed, and after conducting any additional development deemed necessary, the RO should review all the evidence of record in readjudicating the appellant's claim. If the appellant's claim remains denied, she and her representative should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ K. Conner 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).