Citation Nr: 18159325 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-17 647 DATE: December 18, 2018 REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), anxiety disorder, and bipolar disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran’s service connection claim was certified to the Board as a claim of entitlement to service connection for PTSD due to MST. The record reveals that the RO first denied service connection for PTSD due to MST in a January 2010 Rating Decision. Subsequently, in a December 2013 Rating Decision, the RO denied the Veteran’s request to reopen the claim. However, new and material evidence, in the form of a Social Security Administration Notice of Decision was received within one-year of the issuance of the January 2010 Rating Decision. The Notice of Decision found that the Veteran “suffers from post-traumatic stress disorder and bipolar disorder (Exhibit 11F/2).” As such, the finality of the January 2010 rating decision was abated. The issue before the Board has been recharacterized above. In a May 2015 substantive appeal, the Veteran requested a travel board hearing. The requested hearing was scheduled for March 6, 2018, but the Veteran submitted correspondence in February 2018 stating she could not attend the hearing and asked for the hearing to be rescheduled. A new hearing was scheduled for October 30, 2018. An October 15, 2018 Report of Contact documented that the Veteran received the hearing notice, but requested to cancel the scheduled hearing. Since then, she has not requested to reschedule the hearing. As such, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Service Connection for an Acquired Psychiatric Disorder is Remanded While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran’s service connection claim. The Veteran contends that her current psychiatric disorder is the result of her service. Specifically, in a September 2013 correspondence, the Veteran described being assaulted in service. She stated that she was stalked and sexually assaulted in the summer of 1980. She describes having several encounters with a “guy” that “she didn’t know.” On one Saturday evening, the Veteran reported that she went to a bar with friends and saw the stranger there. Later in the evening, she recalls, she lost consciousness and regained consciousness in the women’s restroom. She stated that “one or more of the drinks I had that night was laced with something.” According to the Veteran, she “didn’t come to until sometime on Sunday.” On Sunday, she discovered bruises on her body and she “felt that I had been vaginally penetrated as well.” Following this incident, the Veteran reported that “depression, panic attack, and anxiety took over, I couldn’t sleep at night due to the nightmare I kept having. I started using alcohol to help with the numbness and grief I was feel all the time. My performance at work started to go downhill.” Military personnel records reveal several disciplinary actions taken against the Veteran, beginning around November 1980. For example, on March 7, 1981, the Veteran received an Article 15 for negligently allowing an unauthorized civilian to the enter the base without checking for proper identification. Also, the Veteran received an Article 15 on April 12, 1981 for negligently failing to report to her post. An April 1981 Commander’s Report – Administrative Discharge documented a recommendation for General discharge due to the Veteran’s poor performance and discreditable incidents. In November 2013, the Veteran was afforded a VA mental health examination. After interviewing the Veteran and performing a psychiatric examination, the examiner found that the Veteran did not meet the criteria for a PTSD diagnosis, but that she did meet the criteria of bipolar disorder and anxiety disorder not otherwise specified (with post-traumatic stress features). The Veteran detailed a history childhood trauma as well as her reports of military sexual trauma. The examiner stated that the Veteran denied going to the hospital or getting help in any way for the alleged military sexual assault. The examiner opined that “the Veteran suffers from Bipolar II Disorder and an Anxiety Disorder NOS (with post-traumatic features) related to severe childhood trauma.” In support, the examiner cited a medical history of childhood sexual trauma and found that the “[m]edical record indicate that the Vet never endorsed military sexual trauma.” In regards to the alleged sexual assault in service, the examiner stated that “[t]here is not enough evidence to suggest that Vet has a history of military sexual trauma.” The Board finds that the November 2013 VA examination is inadequate. Currently, the record does not reveal any verified reports of pre-service personal assault or medical evidence that documented a psychiatric condition. In addition, service treatment records did not note any psychiatric condition on entry. The November 2013 examiner incorrectly premised her opinion on the Veteran’s reported history of pre-service trauma. The November 2013 examiner failed to address the Veteran’s contentions that her poor military performance, and ultimate discharge, was due to or related to the depression and anxiety she manifested as a result of the alleged sexual assault. Further, the examiner did not consider whether the Veteran’s military service aggravated any pre-service psychiatric condition. Therefore, a new medical opinion is warranted prior to adjudication of the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matter is REMANDED for the following action: 1. Update the file with any VA treatment records and military personnel records relevant to the Veteran’s claim dated from April 2009 to the present. 2. After the above has been completed to the extent possible, obtain an addendum VA mental health opinion, with a qualified examiner, to determine the etiology of any diagnosed psychiatric disorder, to include PTSD due to MST, anxiety disorder, and bipolar disorder. 3. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file, the examiner should respond to the following: (a.) Please identify all current psychiatric diagnoses. In determining whether the Veteran meets the criteria for a specific psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a “current” diagnosis. (b.) For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (c.) For each current psychiatric diagnosis, indicate whether it is as least as likely as not (50 percent probability or more) that the disability had its onset in service or is otherwise related to service. If the criteria for a diagnosis of a psychiatric disability are met, please state, to the best of your ability, whether the prodromal period for such disorder is as likely as not had its onset during the Veteran’s period of active service. Please note that when it is not possible to separate the effects of a service-connected condition from those of a nonservice-connected condition, regulations requires that reasonable doubt be resolved in the Veteran’s favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. (d.) If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis. (e.) If a diagnosis of PTSD is verified due to a pre-service stressor, please describe the role that her military service may have contributed in the development of her current condition. Specifically, did her military experience, to include her reported military sexual trauma, worsen her current condition? Please explain. (f.) To the extent possible, state whether and to what degree current psychiatric signs and symptoms may be differentiated from those associated with nonservice-connected disabilities, including pre-service psychiatric conditions. If the manifestations cannot clearly be distinguished, the examiner should so state. (g.) Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. (h.) A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate t and provide a supporting rationale as to why that is so. (i.) If the examiner diagnoses PTSD on the basis of a stressor for which credible supporting evidence is needed, the AOJ should undertake to obtain such evidence, to include by submitting inquiries to appropriate records repositories and by requesting additional information from the Veteran, if needed. (Signature on next page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel