Citation Nr: 21065902 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-04 135 DATE: October 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to April 1967 and from April 1971 to July 1971. The Veteran died in May 2013, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision. The appellant testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript is of record. In September 2018, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. On review, the Board finds that additional development is necessary prior to final adjudication of the appeal. In a December 2019 VA medical opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner further opined that, given the totality of the evidence, it was less likely than not that the Veteran's period of going absent without leave (AWOL) was an objective marker or related to his reported military sexual trauma. Although the examiner provided a detailed review of some of the medical evidence of record, the opinion appears to be based on an incomplete or inaccurate factual premise. For example, the examiner stated that the claims file did not contain any mental health treatment notes dated from 1996 to 2008. However, the examiner did not note the VA medical records that appear to document relevant assessments and complaints of mental health symptoms during that period. See, e.g., VA medical records dated June 1996 (Veteran requested medication for insomnia); February 1998 (a VA licensed social worker noted an assessment psychosis); and June 2007 (active medications included Fluoxetine for mood). The examiner also stated that the claims file contained no mental health treatment notes dated in 2013. However, in an April 2013 VA psychosocial assessment, a licensed social worker indicated that the Veteran continued to struggle with PTSD and that she planned to provide him in-home counseling. In addition, in a February 2021, the appellant's representative contended that remaining silent for many years after an assault is a behavioral marker for military sexual trauma. The December 2019 examiner did not have the opportunity to address this contention. Based on the foregoing, a remand is necessary to obtain an additional VA medical opinion. In addition, the Veteran had reported that he received treatment for his mental health disorder shortly after his separation from service at a VA medical facility in Manhattan, New York. See, e.g., November 2011 VA report of general information and November 2011 VA examination report. In November 2019, the Agency of Original Jurisdiction (AOJ) received records from the New York Montefiore Medical Center dated from 1988 to 1989. However, it is unclear whether the AOJ requested records from that facility dated prior to 1988 or made any additional efforts to obtain records from a VA facility in Manhattan, New York. Therefore, a remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, in October 2019, the AOJ received a response to a request for records from the Miami VA Medical Center (VAMC) that noted only one record was found in the computer system for the time period requested. Notably, however, the request for records that is currently associated with the claims file does not identify a specific time period that was requested. As such, it is unclear whether any records are available from the Miami VAMC or its archives for the period from July 1971 to February 2009. Therefore, a remand is necessary to attempt to obtain any outstanding VA medical records. On remand, the AOJ should also afford the appellant an additional opportunity to submit authorization to obtain any outstanding private medical records. The matters are REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's acquired psychiatric disorder that are not already of record. A specific request should be made for authorization to obtain records from Halifax Hospital as identified during the July 2018 hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any outstanding records from the Miami VAMC and a VA medical facility located in Manhattan, New York, dated from July 1971 to May 2013. If such records are available, documentation showing the attempts made should be associated with the claims file 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any acquired psychiatric disorders. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The Veteran reported that he was a survivor of sexual and physical assaults during his period of service from April 1971 to July 1971. See, e.g., February 2011 statement in support of claim for PTSD. He also reported that he went absent without leave (AWOL) in 1971 as a result of the assaults. See, e.g., January 2011 VA psychiatry record. The examiner should note that the Veteran and the appellant are competent to attest to factual matters of which they have first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran or the appellant, the examiner should state this with a fully reasoned explanation. The examiner should identify any psychiatric disorders that were present during the appeal period, to include PTSD. If any previously diagnosed psychiatric disorders are not found, the examiner should address whether they were misdiagnosed or resolved. For each diagnosis identified other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or was otherwise causally or etiologically related to the Veteran's military service. With regards to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault that the examiner determines to have occurred during service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service personal assault. Examples of behavior changes that may constitute credible evidence of the stressor 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; or unexplained economic or social behavior changes. In rendering this opinion, the examiner should address the Veteran's statement that he went AWOL in 1971 as a result of in-service physical and sexual assaults. The examiner should also address the appellant's representative's contention that remaining silent for many years after an assault is a behavioral marker for military sexual trauma. See February 2021 appellate brief. If there is a verified stressor or if the examiner determines that a personal assault occurred in service, he or she should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including personal assault if found. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should ensure that there has been compliance with the foregoing directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.