Citation Nr: 1806045 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-20 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO has phrased the issues currently on appeal as entitlement to service connection for PTSD and entitlement to service connection for major depressive disorder. A review of the record indicates that the Veteran has at times received both diagnoses. Accordingly, the Board has recharacterized the scope of the Veteran's claim as service connection for a psychiatric disorder, to include PTSD and major depressive disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, consistent with Clemons and the current record, the Board has recharacterized the claim as reflected on the title page. The Veteran testified before the Board in December 2016. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is claiming service connection for a psychiatric condition based on two incidents in service. The first incident involved military sexual trauma (MST). In an August 2010 statement the Veteran clarified that he returned late from leave, and as a result was confined to the brig in San Diego. The reported incident occurred between May and August 1966 and he related that during his confinement he was sexually assaulted on multiple occasions. The second incident occurred between September and October 1967 and involved the Veteran witnessing a buddy get stabbed outside a club in Okinawa, Japan. The Veteran reported he ran back to his barracks and did not report the incident for fear of being sent back to the brig, but did not recall the friend's name. The Board finds that a remand is warranted. First, the Veteran's military personnel records reflect that he was convicted for unauthorized absence via summary court-martial on July 18, 1966 and sentenced to a 15-day confinement. He contends it was during this confinement he was personally assaulted. At his December 2016 Board hearing, the Veteran acknowledged that he did not report the assault after it happened and he did not have increased disciplinary actions afterward. However, he also reported that afterward he began not showing up for duty on time but was only verbally reprimanded. 38 C.F.R. § 3.304(f)(5) pertains to claims of PTSD related to in-service personal assault. The provision states evidence from sources other than the Veteran's service records may corroborate the Veteran's account. It also acknowledges that evidence of behavior changes after the assault is but one type of relevant evidence. Finally, the provision states that 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 has occurred." The Board highlights that the Veteran has not been afforded a VA psychiatric examination. Nonetheless, he has contended an in-service assault, explained that after his confinement and assault he began being late for duty assignments and was verbally reprimanded, and submitted a statement from his spouse about his behavior throughout their marriage that he purports to be evidence of the long-term effects of his assault and ensuing psychiatric condition. As the record provides some indication of the Veteran's in-service assault, a remand is warranted to provide the Veteran with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). All pertinent evidence should be submitted to the VA examiner for an opinion as to whether the evidence indicates the personal assault actually occurred. See 38 C.F.R. § 3.304(f)(5). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The entire claims file must be reviewed by examiner. Any necessary testing should be conducted. The examiner is to determine whether the Veteran meets the criteria for a diagnosis of any psychiatric disorder, to include major depressive disorder. A diagnosis of PTSD must be ruled in or excluded. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder had its onset during service or is otherwise causally related to service. If a diagnosis of PTSD is established, the examiner should identify and discuss the underlying stressor, including any alleged personal/sexual harassment stressor. In doing so, the examiner should provide an opinion as to whether it is at least as likely as not that the claimed MST occurred. A complete rationale should be provided for any opinions reached. 2. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).