Citation Nr: 21010905 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-40 812 DATE: February 26, 2021 REMAND Entitlement to service connection for an acquired psychiatric condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2020, the Board remanded this claim, noting that VA previously failed to obtain the Veteran’s Social Security Administration (SSA) records and, if it concluded that it could not obtain certain identified private treatment records, to notify properly the Veteran as such. In March 2020, VA uploaded the Veteran’s SSA records. With respect to the private treatment records, the Board notes that it previously overlooked the fact that, in a March 10, 2017, correspondence, VA notified the Veteran that it made three prior attempts to obtain the records to no avail. The letter also states that further attempts to obtain the records would be futile and that the Veteran should submit any copies of these records that she may have in her possession, as well as any other evidence she thinks may support her claim. Thus, the Board is satisfied that its prior remand directives have been fulfilled. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Nevertheless, additional remand is necessary. Throughout her appeal, the Veteran posits that her psychiatric condition developed during service due to her former husband’s criminal actions: molesting their daughter and committing a rape and stabbing on March Air Force Base (AFB) where she was stationed. See December 16, 2016, VA Form 21-0781a; November 17, 2015, VA Form 21-0958 (Notice of Disagreement (NOD)). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including psychoses, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). For VA compensation purposes, the term “psychosis” means: a Brief Psychotic Disorder; Delusional Disorder; Psychotic Disorder Due to Another Medical Condition; Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; Schizoaffective Disorder; Schizophrenia; Schizophreniform Disorder; and Substance/Medication-Induced Psychotic Disorder. 38 C.F.R. § 3.384. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of any mental health condition. In July 1986, the Veteran declined a separation examination. In January 2017, VA obtained on the Veteran’s behalf private treatment records from Dr. R.C.; those records span from January 1987 to March 2016. The earliest records from Dr. R.C. indicate that the Veteran has manic depression syndrome and posttraumatic stress disorder (PTSD). Dr. R.C. prescribed medication as needed and counseling. The January 1987 entry also mentions that her in-service delivery of her child caused vaginal scarring and potentially is intertwined with these psychiatric symptoms. Throughout the remainder of these records there also are notations of severe and persistent hallucinations, emotional distress, inability to function socially, and paranoia. Of record is a November 1984 March AFB Order Barring Entry against the Veteran’s former husband—P.W. In summation, that Order states that, because of an October 26, 1984, assault and battery on March AFB, P.W. no longer was allowed on base but for certain limited conditions, as he then was married to the Veteran. In evaluating the evidence of record, the Board finds that VA has failed its duty to assist by not providing the Veteran an examination and opinion. The medical records from Dr. R.C. indicate that the Veteran has had a psychiatric condition since the inception of this appeal. The March AFB Order reveals that the Veteran underwent personal hardships, attributed to the actions of P.W., during her time of active duty service. The records from Dr. R.C. verify that the Veteran began receiving mental health treatment less than one year from her separation from service, which the Board finds at least indicates that her personal hardship during service and her current mental condition could be related. In addition, it is possible that her in-service delivery is tied to these conditions. Therefore, the Board finds that a VA examination and medical opinion are warranted, requiring remand. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a). As an ancillary point, it is not clear whether psychiatric treatment sought within one year of separation from service was a manifestation of a psychosis for VA purposes. Upon remand, the VA examiner should address this evidence. As noted above, the Veteran alleges that P.W.’s molestation of their daughter contributed to the development of her psychiatric condition. The Board acknowledges that there are government documents pertaining to P.W.’s criminal conduct in 1989. However, this event post-dates the Veteran’s period of active duty service by roughly three years. Thus, this incident does not constitute an in-service event for purposes of establishing service connection.   The matter is REMANDED for the following actions: 1. Schedule the Veteran for an initial psychiatric examination. The examiner shall answer the following: Identify or diagnosis each psychiatric disorder the Veteran currently has. For each diagnosed psychiatric disorder, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s psychiatric condition (1) occurred in, or is the result of, her period of active duty service, to include her former husband’s assault and battery of other service members on March AFB and/or sexual dysfunction resulting from her in-service pregnancy, (2) manifested within one year of separation from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.