Citation Nr: 18150662 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-12 043 DATE: November 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 active duty in the Army from October 1973 to December 1973. The matter on appeal before the Board of Veterans’ Appeals (Board) is from a September 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). Entitlement to service connection for PTSD is remanded. The Veteran contends that she is entitled to service connection for PTSD because she was sexually assaulted in-service. Unfortunately, this matter must be remanded for further development for VA treatment records and a VA examination. The criteria for service connection for PTSD are slightly different from the criteria for other disabilities. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2018). Under 38 C.F.R. § 3.304, 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. 38 C.F.R. § 3.304(f)(5) (2018). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304, 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 occurred. 38 C.F.R. § 3.304(f)(5) (2018). Under 38 U.S.C. § 5103A, VA must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. § 5103A(a)(1) (2012); see 38 C.F.R. § 3.159(c) (2018) (obligating VA to obtain relevant records from Federal department or agency). This duty to assist includes making reasonable efforts to obtain relevant records, including private records, as long as the claimant “adequately identifies” those records and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1) (2012); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). The United States Court of Appeals for the Federal Circuit has indicated that VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In an August 2012 statement, the Veteran claimed she was diagnosed with PTSD in August 2012 by a VA psychiatrist. The statement requested that VA obtain these records, but there is no indication that attempts were made to locate them. Additionally, in the January 2016 Form 9, the Veteran claims that she was treated by VA psychologists at Fort Smith, Arkansas, for years. However, there are no VA records from Fort Smith about her psychiatric treatment. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Additionally, VA must afford a veteran an examination and/or obtain an opinion when it is necessary to decide the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An examination is necessary because there is evidence that the in-service event occurred and that the Veteran experiences PTSD symptoms. In an October 2005 VA treatment record, a nurse had the Veteran answer a PTSD annual questionnaire. The Veteran answered positively to all questions, indicating that she was suffering from trauma. Additionally, the Veteran’s STRs corroborate her statements about having a sexual encounter. Her behavior after she was allegedly sexually assaulted also show how the incident affected her. She was discharged because she was lethargic and unwilling to meet even the minimum of standards expected by the Army—a change from before the incident. As such, VA must provide the Veteran an examination before deciding the claim. McLendon, 20 Vet. App. at 81-82. The matter is REMANDED for the following action: 1. Ask the Veteran to clarify the dates and location of mental health treatment, regarding her alleged PTSD diagnosis in August 2012, indicated in her August 2012 statement. Also, ask her to clarify the dates of her psychiatric treatment at Fort Smith, Arkansas, indicated in her January 2016 Form 9. 2. Obtain outstanding VA or private treatment records identified by the Veteran, clearly document any response received, and associate any such records with the claims file. 3. Following completion of the above, schedule the Veteran for a VA mental disorders examination to determine the nature and etiology of her reported acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must opine whether the evidence of record, including the Veteran’s lay statements and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that the evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether her PTSD is at least as likely as not (50 percent or greater probability) related to the in-service personal assault. (CONTINUED ON NEXT PAGE) The examiner must provide a complete rationale for any opinions offered, citing to pertinent evidence and medical principles. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Imam, Associate Counsel