Citation Nr: 18155167 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-44 977 DATE: December 3, 2018 REMANDED Service connection for an acquired psychiatric disorder claimed as due to military sexual trauma (MST) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from September 1982 through February 1983 during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision denying service connection for a bipolar disorder (and four other claims, which the Veteran did not appeal to the Board). The Veteran timely filed a May 2013 notice of disagreement. A statement of the case was issued in June 2016. The Veteran then filed a substantive appeal in September 2016, recharacterizing the bipolar disorder claim as a mental disorder stemming from a MST. The Board now considers the claim in accordance with the United States Court of Appeals for Veterans Claims decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Remand of Service Connection for an Acquired Psychiatric Disorder Claimed as Due to MST The Veteran contends that she was sexually assaulted in December 1982 while serving in the Army, and that the assault led to a pregnancy, which resulted in a medical discharge from service in February 1983. Directly following the sexual assault, the Veteran states that she experienced severe mental distress for the first time in her life, including, but not limited to, depression, nightmares, anger, fear, and anxiety. The Veteran contends that within a year of discharge from service she sought mental health treatment and was diagnosed with bipolar disorder. She also states that she later abused alcohol and drugs and attempted suicide. The record in this case is missing personnel records, service treatment records (STRs), and private treatment records contemporaneous to the claimed 1982 sexual assault. VA has attempted to obtain these records and found that any additional searches for those records are likely to be futile. Specifically, VA contacted the National Personnel Records Center several times from July 2010 to July 2018 to try to obtain the personnel records and STRs, repeatedly receiving the response “no records found.” VA also contacted Buncombe County Health Department for verification of the Veteran’s records, but received a response that the records had been destroyed in 1993 pursuant to its record retention policy because the Veteran had not stayed active in their system for ten years. VA again received negative responses when seeking private medical treatment records from the 1980s through 1990s: Dr. Cummings from FemCare said that she retained the Veteran’s records for 20 years before destroying them; a representative from Dr. P. Philips Hospital (Sand Lake Hospital) explained that their record retention policy is to destroy records after 10 years; and the Blue Ridge Center for Mental Health is closed with no records to be found. The case record, however, does include current treatment records from VA mental health providers from November 2016 through August 2018, as well as records from Advanced Psychiatric Solutions from February 2016 through May 2016. It also includes: statements from the Veteran describing in detail the MST; a letter from her boyfriend, detailing current mental health struggles; and a letter from her mother, recounting the changes she observed in the Veteran’s mental health and behavior when she returned home immediately after service. In 2016 the current VA health care providers diagnosed posttraumatic stress disorder (PTSD) stemming from the alleged in-service sexual assault. The Veteran has been diagnosed with major depressive disorder. As noted above, the Veteran indicated that she previously had a bipolar disorder diagnosis, as well (although that diagnosis is not current). There has been no VA mental health examination. As the Veteran has been diagnosed with and treated for one or more mental health disorders including PTSD, and as the Veteran asserted MST as a stressor, the Board finds that remand for a direct service connection opinion is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A comprehensive VA examination would assist in determining the nature and etiology of any currently diagnosed psychiatric disorders, including whether the diagnoses include PTSD, and, if PTSD is diagnosed, to offer an opinion as to whether such a diagnosis is consistent with a claimed personal assault in service. Under 38 C.F.R. § 3.304(f)(5), 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. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Id. The matter is REMANDED for the following action: 1. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s mental health, not already of record, for the period from September 2018. 2. Schedule a comprehensive VA mental health examination to help determine whether the Veteran has a currently diagnosed psychiatric disorder, to include PTSD, which is related to service. The relevant documents in the record should be made available to the examiner, including, but not limited to, current medical treatment records, lay statements from her mother and her boyfriend, and the Veteran’s statements about the claimed in-service sexual assault. (a.) The examiner should obtain a full and accurate history from the record and from the Veteran, and all indicated studies should be performed. (b.) The examiner should provide the following opinions: i. Does the Veteran have PTSD? In answering this question, the examiner should address the following: the PTSD diagnosis in the VA treatment records; the identification of specific stressor(s) underlying any PTSD diagnosis, including the MST and any other stressor (such as post-service domestic violence and/or her post-service human immunodeficiency virus diagnosis); and if it is the examiner’s opinion that a MST occurred, specific identification of factors on which this opinion is based. ii. For any diagnosed PTSD, is it as likely as not (i.e., probability of 50 percent or more) that the disability is related to service, specifically the reported MST? The examiner should explicitly opine as to whether the nature of any diagnosed PTSD indicates that a personal assault occurred during service. iii. Does the Veteran have any other non-PTSD psychiatric disorders, including, but not limited to, depression and/or bipolar disorder? iv. For any diagnosed non-PTSD psychiatric disorder, is it as likely as not (i.e., probability of 50 percent or more) that the disability had its onset during active service, or is causally or etiologically related to service? If so, please indicate what event or symptom in service represents the onset of the current disorder. 3. Readjudicate the issue of service connection for an acquired psychiatric disorder claimed as due to MST. If the benefits sought on appeal remain denied, the Veteran and representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This includes, but is not limited to, evidence from the Veteran regarding the MST. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel