Citation Nr: 1820107 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-33 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and several observers ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty with the U.S. Navy from July 1984 to November 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2017, the Veteran provided testimony at a Board hearing and a transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that she developed a psychiatric disorder as a result of a sexual assault during service. The incident in question involves a physical/sexual assault that occurred in October 1995 when she was drugged at a party. She claims she was handed a beer and soon after became very dizzy and lightheaded. She was led to a weight bench where two individuals undressed her. She finally remembered the incident in 2011 when she began having nightmares. The Veteran has also provided the names of her alleged attackers (AE3 M.S. and "AMH2"). See VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Personal Assault, received in April 2014. The Veteran also elaborated upon this incident during an October 2017 Board hearing. The Veteran stated that she had no memory of the incident, but recalls that immediately afterwards her boyfriend broke up with her and her supervisor (AZ2 M.W.) commented on her "fun weekend." The Veteran also stated that several days after the assault she began having debilitating abdominal pain, eventually diagnosed as endometriosis. She also became very anxious and her work performance was affected. She later sought treatment for anxiety and depression during service. The Veteran now points to these as signs indicative of adverse changes in her behavior as a result of her mental duress from having been a victim of sexual assault. The Veteran's history is also significant for childhood emotional and physical trauma. Service treatment records reflect she was first referred for routine psychiatric evaluation in September 1988, which pre-dates the alleged sexual assault in 1995, as she was having difficulty in adjusting at work. She was anxious, stressed and complained she was not progressing and having trouble getting along with her supervisor. She also noted infrequent discrete episodes of alcohol abuse with tolerance as high as a fifth of liquor, a single blackout and no abstinence phenomena. She also gave a history of a chaotic and emotionally abusive childhood. The clinical diagnosis was alcohol abuse with tolerance and passive-aggressive personality disorder. The Veteran underwent a psychiatric consultation in September 1995 for difficulty in dealing with job stress and an impending divorce. Past background history revealed she saw a Navy psychiatrist in September1988, for stress and conflict with her chief. She was again evaluated by a Navy psychologist in August 1993 for unresolved adult-child of alcoholic issues. The Veteran also reported that she was the victim of sexual harassment twice while in the Navy, and that she reported it once. She was also disciplined twice (Captain's Mast) for being late to work. The clinical impression was adjustment disorder with depressed mood and personality disorder not otherwise specified. Subsequently dated records show the Veteran continued to be followed for depression. She underwent a psychological examination in April 1998 to evaluate her chronic pelvic pain. At that time she reported a history of sexual abuse through age 12, physical abuse through age 18 and verbal abuse through age 30, which included her first husband. She also reported a history of treatment for depression in August 1994. The Veteran also reported concern that her two young daughters were being sexually abused. She based her allegation on incidents that occurred just prior to her deployment here. The clinical impression was pain disorder associated with psychological factors and general medical condition, depression, and victim of childhood sexual abuse. The post-service record currently contains at least one psychiatric diagnosis which appears to be based upon the childhood traumas as well as the in-service incidents. The examiner then concluded that the Veteran clearly described pre-existing depression and anxiety. In addition, she had been diagnosed with a personality disorder in service, which by its nature must have existed before service. The examiner also determined that it was less likely as not that the Veteran's condition was permanently aggravated by military service, as he was unable to discern any appreciable difference in the course of her condition in service records. See VA examination report dated July 2014. Given the above, the Board notes when there are looming uncertainties about whether, for example, certain treatment the Veteran received while in the military under other pretenses was, in actuality, for sexual-related trauma, or there were other events prior to service equally warranting consideration, VA adjudicators must refer the case to a psychiatrist/psychologist to have him/her review this evidence and determine whether it constitutes the type of behavior change, etc., contemplated by section 3.304(f)(5). See Patton v. West, 12 Vet. App. 272 (1999); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if it is necessary to decide the claim). In addition, the VA examiner's application of the "less likely than not" standard is insufficient to meet the high standards required to rebut the presumption of soundness and the presumption of aggravation. Because the evidence of record does not provide a clear picture of any relationship between the Veteran's current psychiatric disorder and her military service, an additional medical opinion is needed. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain any outstanding VA treatment records that are not already associated with the claims file to specifically include copies of relevant records viewable in CPRS (the VA Computerized Patient Record System), or any other similar viewing tool. 2. Schedule a VA examination by a psychologist or psychiatrist. The examiner should elicit from the Veteran a detailed history of the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history and the assertions of the Veteran and her representative (referenced in part above, and in the October 2017 hearing testimony) identifying several markers alleged to demonstrate that the assault in fact occurred. All indicated tests and studies should be performed, including psychological and/or personality testing, the examiner must review the results of any testing prior to completing the report. a) The examiner must indicate whether the Veteran meets the criteria for a DSM-5 diagnosis of PTSD, and if so, whether it is at least as likely as not i.e., at least a 50 percent probability or greater, that the Veteran exhibited signs and symptoms consistent with behavioral changes expected to follow from the claimed personal assault. Behavioral changes that may constitute credible evidence or a personal assault 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; and unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). If the Veteran does not meet the criteria for a diagnosis of PTSD due to in-service personal assault/harassment, the examiner should explain why. b) If a psychiatric disorder other than PTSD is diagnosed, including depression and anxiety, the examiner should state whether such disorder at least as likely as not, i.e., at least a 50 percent probability or greater, began during service or is otherwise related thereto. If any diagnosed psychiatric disorder other than PTSD cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. c) In the alternative, the examiner should then determine whether there is clear and unmistakable evidence (i.e., undebatable) that a psychiatric disorder including PTSD existed prior to service (considering the childhood sexual abuse before her enlistment) and, if so whether there is clear and unmistakable (undebatable) evidence that it was not aggravated by service beyond its natural progression, including from assault/harassment during her service. In providing, this opinion, the examiner must consider the diagnoses already of record, including depression, anxiety and PTSD. The examiner must offer an opinion even if a specific diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). If any previously rendered diagnosis was later corrected to reflect a more accurate diagnosis, the examiner should state the same. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. 3. Then, readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).