Citation Nr: 18142328 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-43 969 DATE: October 15, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to January 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Notably, the February 2015 rating decision denied service connection for bipolar disorder while the May 2018 determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for PTSD to include depression and anxiety, previously denied as bipolar disorder. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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, reported symptoms, and the other information of record). As a result, in conjunction with Clemons and as addressed below, the claim has been characterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board also notes that following the February 2015 rating decision which denied service connection for bipolar disorder, the Veteran filed a timely November 2015 Notice of Disagreement (NOD) requesting, in part reconsideration of his claim for entitlement to service connection for bipolar disorder and depressive symptoms. In response, the RO issued a November 2016 Statement of the Case (SOC) confirming the denial of bipolar disorder. Thereafter, the Veteran submitted a VA Form 21-438 Statement in Support of Claim in which he provided a statement on his claimed in-service sexual assault. However, a timely substantive appeal via a VA Form 9 was not submitted. Nevertheless, a substantive appeal may be accepted when untimely, if circumstances so warrant. Therefore, a failure to file a timely substantive appeal does not automatically deprive the Board of jurisdiction over a claim. Percy v. Shinseki, 23 Vet. App. 37 (2009) (finding that the VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly); see also Rowell v. Principi, 4 Vet. App. 9, 17 (1993). The Board has found that the record clearly establishes the Veteran’s desire to proceed with his acquired psychiatric disability claim, as evidenced by his continued correspondence and submissions. As a result, despite the lack of a substantive appeal for the issue, the claim of entitlement to an acquired psychiatric disability, is currently before the Board and this obviates the need for the Veteran to submit new and material evidence to reopen his claim for service connection for an acquired psychiatric disorder to include PTSD disability. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD is remanded. Following a review of the Veteran’s claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for an acquired psychiatric disorder to include PTSD. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Notably, the Veteran contends that he has PTSD as a result of military sexual trauma. With regard to the diagnosis of PTSD in part due to a military sexual assault, VA has established special evidentiary development procedures, including the interpretation of behavioral changes by a clinician and interpretation in relation to a medical diagnosis. Patton v. West, 12 Vet. App. 272 (1999). Notably, the Veteran has yet to undergo a VA examination for his claimed acquired psychiatric disability. Given the Veteran’s contentions regarding possible in-service stressors and his VA treatment records showing psychiatric treatment to include a positive PTSD screening, the Board found that a VA examination is necessary to decide the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. The matter is REMANDED for the following action: 1. Provide the Veteran notice for establishing claims based on in-service personal assault, per 38 C.F.R. § 3.304(f)(5). 2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 3. Then, the Veteran should be scheduled for a VA examination to determine the etiology of the claimed acquired psychiatric disability to include PTSD. Based on the review of the Veteran’s pertinent history and the examination results, and with consideration of ALL lay statements of record, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. The examiner should determine whether there is evidence of behavior changes or other relevant changes following the claimed sexual assault; and opine as to whether that evidence indicates that the personal assault occurred. If the examiner determines that the evidence does indicate that the personal assault occurred, then the examiner should opine as to whether it is at least as likely as not that the Veteran has PTSD as a result of sexual assault. If a diagnosis of PTSD during the period of the claim is not warranted, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. With respect to each additional acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran’s active service. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel