Citation Nr: 1806380 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-20 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula INTRODUCTION The Veteran had active service from December 1970 to June 1974 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for PTSD. In December 2017, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. The Board notes that the Veteran has been treated for a variously diagnosed psychiatric condition, to include PTSD, depression, anxiety disorder, and dysthymic disorder. The RO has considered the issue as a claim for service connection for PTSD due to military sexual trauma. The Board, however, finds that the issues on appeal should be characterized as set forth on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends she was assaulted twice during service, and that as a result of these attacks she developed PTSD and has had PTSD symptoms since service. She reported that in January/February 1974, while leaving the hospital at Fitzsimon Army Medical Center and walking back to her barracks, she was attacked from behind and raped by an unknown person. She also reported that in 1991 at Fort Lee, a staff sergeant attacked her after she challenged him for making pregnant women scrape wax off the floors. Service treatment records show no report or finding of symptoms associated with PTSD, and the Veteran testified she did not report the assault during service because she was afraid to report them, and also stated that at that time (in the 1970s) when such things happened they did not report it and could not report it. She also testified that after service she tried but was unable to get help from VA or the Vet Center because she did not serve in a "theater of war", but that finally in 2007 she contacted an outside psychologist who helped her get into the Vet Center. Post-service medical records from the Vet Center and VA records show that the Veteran has been treated for PTSD, as well as other psychiatric disorders, including chronic anxiety disorder and dysthymic disorder; thus she has a current disability. In support of her claim, the Veteran submitted a letter dated in August 2014 from a Vet Center psychologist, Dr. S., who treats her. In the letter Dr. S. indicated that the Veteran suffered from PTSD and major depression for many years both of which were caused by her military career, and also noted that the Veteran met the DSM-5 criteria for both PTSD and major depressive disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). The Board notes that the Veteran has competently alleged in-service events and asserted that she has had psychiatric symptoms since those events. Additionally, as noted above, she has submitted competent medical evidence of current psychiatric diagnoses of PTSD and major depression due to service. However, no explanation or rationale was provided for that opinion from Dr. S., and it appears that the opinion was based on the Veteran's reported history and did not include a review of the record. 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); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence "indicates" that the veteran's disability "may" be associated with his service is a low threshold. Id. Thus, considering the record on appeal, a VA examination/opinion is in order to address whether the Veteran has a psychiatric disorder, to include PTSD, that that may be related to service. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify the provider(s) of any additional treatment or evaluation she may have received for a psychiatric condition, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. Negative replies should also be requested. 2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and probable etiology of any current psychiatric disorders. The claims folder should be made available for review by the examiner. Based upon the examination results and the review of the record, the examiner should identify all psychiatric disabilities currently present, or present during the pendency of this claim, and should provide a full multi-axial diagnosis pursuant to DSM-IV and DSM-5. The examiner should opine as to whether there is there sufficient evidence of record to conclude that the Veteran was subject to personal assaults during active service. With regard to each psychiatric disability found, the examiner should opine as to whether there is a 50 percent or greater probability that the disability is related to active service, to include any MST stressor determined to have occurred therein. The examiner must explain the rationale for all opinion given, and if unable to provide the requested opinions without resorting to speculation, the examiner should clearly specify this, along with an explanation as to why that is so. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If the benefit sought is not granted, the Veteran and her representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).