Citation Nr: 18156139 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-26 709 DATE: December 7, 2018 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1993 to July 1996, and from October 1998 to May 2003. She served in the United States Army. 1. Entitlement to service connection for a psychiatric disorder, to include PTSD, is remanded. First, remand is necessary to secure all outstanding VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). In a February 2015 Vet Center Intake Assessment Note, it was noted that there were four addenda to the note. However, the addendums are not included in Veteran’s claims. This suggests that there may be outstanding records not yet associated with the Veteran’s claims file; thus, remand is appropriate to attempt to obtain these files and associate them with the record. Second, remand is required for additional development. In an October 2014 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, the Veteran identified two incidences which she alleged were stressors for her psychiatric condition. The record does not show that that any development has been undertaken to verify these stressors, and there is no formal finding documented. Third, remand is required to either review another servicemember’s personnel records. VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts. During a June 2015 VA examination, the Veteran reported that she was sexually assaulted by Staff Sgt. E, and a week later, he wrote on her quarterly performance review that her conduct was unbecoming of an NCO and counseled her about it. The Veteran reported that she filed an official complaint against Staff Sgt. E. but that she was the one reassigned to a different company and post, while Staff Sgt. E. kept his job. The servicemember’s records are relevant because it has a reasonable possibility of substantiating the Veteran’s claim and may aid in corroborating the stressor of a sexual assault. Fourth, remand is required to obtain an adequate VA examination that addresses all theories of recovery. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement, and must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). If a PTSD claim is based on military sexual trauma or personal assault in service, evidence from sources other than the Veteran’s records may corroborate the Veteran’s account of the stressor incident. 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. 38 C.F.R. § 3.304(f)(5) (2018). Furthermore, an appropriate medical or mental health professional may provide an opinion as to whether the evidence of record indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). Medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred and such opinion evidence should be weighed along with the other evidence of record in making this determination. Menegassi v. Shinseki, 628 F.3d 1379, 1382 n.1 (Fed. Cir. 2011). The Veteran alleges that she has a psychiatric disorder due to in-service sexual assault and harassment. Specifically, she asserts that she has psychiatric symptoms related to a military sexual trauma being sexually assaulted by a fellow service member (Staff Sgt. E) while she was stationed in Germany during her second tour of duty. A January 2015 VA social work outpatient note showed that the Veteran had a diagnosis of PTSD/MST. A February 2015 Vet Center Intake Assessment note indicated that the Veteran complained of reliving the traumatic memories of MST, panic, rapid heartbeat in chest, crying spells when dealing with her patients, and depression. The treatment provider indicated that there was a presence of posttraumatic stress disorder symptoms. A March 2004 VA psychology note also indicated that the Veteran was diagnosed with adjustment disorder with mixed emotional features. A June 2015 VA examination was conducted. The examiner found that the Veteran did not have a diagnosis of PTSD or any diagnosed mental health disorder. During the examination, the Veteran reported that she experienced a lot of sexual harassment during her military career. The Veteran reported that during her first duty station, an E6 squad leader would keep her late after work to talk to her. The Veteran reported that he one time made a comment that if she wanted to be promoted she needed to be nice to him. The Veteran stated that she was terrified of the person and did not know what to do, but never told anyone about what happened. The Veteran described another incident when Sgt. C came to her room and harassed her, but that she did not report what actually happened because she did not want others to believe she was interfering with his marriage. The Veteran also described an incident with an E6 Staff Sgt. E whom she alleged put his hand up her skirt and touched her butt and vagina. The Veteran stated that there were others present, including Staff Sgt. E’s wife, but everyone just laughed. The Veteran reported that about one week after this incident, the Veteran was rated by Staff Sgt. E, whereby he wrote that the Veteran’s conduct was unbecoming of an NCO. The Veteran stated that she made a formal complaint about Staff Sgt. E, and asked others to write letters about what they witnessed, but that two weeks later she was reassigned to a different company and post, while Staff Sgt. E. retained his job as an NCO. The examination report also noted that the Veteran reported having more breakdowns now that she worked at the VA and dealing with Veterans experiencing MST. The examiner concluded that the data were negative for the presence of a current mental disorder, including PTSD. However, the examiner did not address all diagnoses of record, including 1) PTSD/MST and 2) adjustment disorder with mixed emotional features, nor explain why these diagnoses were not warranted. Furthermore, the examiner did not address the Veteran’s lay statements regarding her in-service events. For these reasons, a new VA examination is warranted. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including all Grand Rapids Vet Center records from February 2015 through present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. Contact all appropriate sources in order to verify the Veteran’s alleged stressors, to include being sexually assaulted by Staff Sgt. E. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All responses received should be documented in the claims file. 4. VA must attempt to review the service personnel records of Staff Sgt. E or other records that would corroborate a complaint of assault by Staff Sgt. E by the Veteran, following all required protocols to do so. If the VA does not undertake such efforts, it must notify the Veteran and indicate why it will not do so. 5. After all development has been undertaken, schedule the Veteran for a VA examination to determine the etiology of all psychiatric disorders, to include PTSD as due to MST, if present. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of her active service. (a.) Is the Veteran currently diagnosed with PTSD? If not, provide a thorough explanation, to include addressing the prior diagnosis of record in a January 2015 VA social work outpatient note. (b.) If there is a diagnosis of PTSD, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran’s PTSD had onset in, or is otherwise related to, a verified in-service stressor? (c.) If stressor verification is not accomplished and a diagnosis of PTSD is deemed appropriate, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a probability of at least 50 percent or more) that the Veteran exhibited symptoms and behaviors consistent with behavioral changes expected to follow from the claimed personal assaults, and if so, whether PTSD is related to the alleged incidents. (d.) Are there any non-PTSD currently diagnosed psychiatric disorders? If not, address the prior diagnosis of record, including adjustment disorder with mixed emotional features. (e.) For all other diagnosed non-PTSD psychiatric disorders, is it at least as likely as not (a probability of 50 percent or greater) that the disorder, had onset in, or is otherwise related to the Veteran’s active service, to include, but not limited to, her reports of a personal assault? 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel