Citation Nr: 1804794 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-22 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, paranoid schizophrenia, or however diagnosed. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney-at-Law ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to December 1970 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for PTSD and a depressive disorder. The Board has combined the issues as reflected on the title page of this remand. The Veteran waived a hearing before the Board in the August 2013 substantive appeal, via a VA Form 9. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is necessary for further development of the claim. First, VA treatment records do not appear to be complete. Specifically, medical records indicate that the Veteran initially sought treatment at VA in January 2006; however, the earliest VA treatment record associated with the claims file is dated February 2006, and the February 2006 VA treatment record refers to a January 2006 VA treatment record. Furthermore, the most recent VA outpatient treatment records associated with the claims file are dated November 2009. All outstanding VA treatment records should be obtained and associated with the claims file. The Veteran contends that his PTSD stressor occurred in 1970 when military police beat him after being arrested for being absent without official leave (AWOL). VA has a heightened duty to assist when the Veteran claims PTSD based on a personal assault, but it does not appear that the Veteran has received proper VCAA notice in this claim. VA must first inform the claimant that he may submit alternative forms of evidence, that is, evidence other than service records, to corroborate his account of an in-service assault, and suggest potential sources for such evidence. VA must also assist him in the submission of alternative sources of evidence, by providing additional time for him to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on his behalf. 38 C.F.R. § 3.304(f) (2017); see also Gallegos v. Peake, 22 Vet. App. 329 (2008). Next, the Veteran should be afforded the opportunity identify all private treatment providers and to authorize release or provide copies of pertinent private treatment records in support of his claim. The Veteran submitted a March 2013 disability benefits questionnaire (DBQ), received in June 2013, which was completed by a private psychiatrist. The DBQ indicates that the Veteran has a current diagnosis of paranoid schizophrenia based on "review of the records." However, there are no VA treatment records that indicate such a diagnosis of record. This notation suggests there are potentially outstanding private treatment records pertinent to the claim. Additionally, VA treatment records indicate the Veteran has been receiving "disability" compensation since 2003 or 2004 after the Veteran was involved in commercial truck accident. Although the record is not clear as to source of the disability compensation, inquiry to Social Security must be made and records obtained if it is determined that the Veteran is receiving Social Security disability. Finally, the Veteran should be afforded a VA mental health examination for compensation purposes. As noted above, the law provides that, if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Gallegos, 22 Vet. App. at 329. Additionally, under 38 C.F.R. § 3.304 (f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. Id.; Patton v. West, 12 Vet. App. 272, 278 (1999). In light of the evidence, including the Veteran's military personnel records, the March 2013 DBQ from a private psychiatrist and a statement from the brother, a VA examination is necessary to help determine whether the evidence supports the Veteran's reported in-service personal assault. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, aside from PTSD, the Veteran has been diagnosed during the claims period with depression, anxiety, and paranoid schizophrenia. See March 2013 DBQ. The private psychiatrist indicated that the depression and anxiety are related to the diagnosis of PTSD and the symptoms of the depression and anxiety cannot be distinguished from the PTSD or one another. Thus, during the requested VA examination, the examiner should address any overlapping symptoms, and provide etiology opinions on any psychiatric disorders, separate from PTSD. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran identify all private treatment providers and facilities where he has received treatment for any acquired psychiatric disorder. Request the Veteran submit signed authorizations for release of medical records or provide the treatment records to VA for each provider identified. Any records obtained should be added to the electronic file. 2. Obtain all outstanding VA medical records and associate them with the claims file dated from January 2006 to the present. The Veteran has reported receiving treatment at the St. Louis VAMC and Jesse Brown (JB) VAMC. 3. Ensure that the appropriate VCAA notice has been provided to the Veteran with regards to a PTSD claim based on an in-service personal assault. 4. Obtain from the SSA any records associated with any disability benefits, including the medical records relied upon concerning that claim. All actions to obtain the requested records should be documented fully in the claims files. 5. Then, schedule the Veteran for a VA psychiatric examination. All required diagnostic testing should be undertaken. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file, the examiner is asked to discuss the following: (a). Identify all currently diagnosed psychiatric disorders during the period on appeal. (b). If the Veteran is currently diagnosed with PTSD, provide a medical opinion regarding what evidence in the claims file other than the Veteran's lay statements, if any, suggests that personal assault by military police officers against the Veteran occurred. In doing so, specifically consider and discuss the Veteran's military personnel actions, his brother's May 2010 statement, and the March 2013 private DBQ. (c). Provide a medical opinion as to whether the Veteran's current diagnosis of PTSD is etiologically related (50 percent probability or greater) to the purported in-service stressor. (d). Provide a medical opinion as to whether any other currently diagnosed acquired psychiatric disorder, to include depression, anxiety, or paranoid schizophrenia, had its onset during service or is otherwise related to service. A complete rationale must be provided. 6. After the above is completed, then readjudicate the issue on appeal. If any determination is adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return this appeal to the Board for further 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. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS 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).