Citation Nr: 21025990 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-28 317A DATE: April 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, diagnosed as posttraumatic stress disorder (PTSD), claimed as due to an in-service personal assault, is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with the determinations in a timely manner, and the present appeal ensued. The Board notes that a third issue, entitlement to service connection for a muscle injury, had initially been appealed to the AOJ along with the Veteran’s PTSD and TBI claims. However, the appealed issue regarding a muscle injury was not included in the Veteran’s substantive appeal to the Board, and thus, it is no longer in appellate status. Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C. § 7105 (a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA).. In February 2021 the Veteran testified at a virtual Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A copy of the February 2021 hearing transcript is associated with the electronic claims file. Characterization of issue on appeal In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims held that a claim for any mental disability cannot be limited to that diagnosis but must be considered a claim for any mental disability that may be reasonably raised by several factors, to include the veteran’s description of the claim and/or symptoms and any information and evidence submitted by the veteran or obtained by VA. The Court explained that because a veteran was reasonably requesting benefits for symptoms of a mental condition that he was not competent to medically identify, the adjudication of the claim does not end in the face of currently diagnosed mental conditions that are different from his lay hypothesis on the claim form. The Court noted that it is generally within the province of medical professionals to diagnose or label a mental condition, not the claimant. Pursuant to Clemons, the Board finds it appropriate to recharacterize the issue on appeal as entitlement to an acquired psychiatric disability, diagnosed as PTSD. 1. Entitlement to service connection for an acquired psychiatric disability, diagnosed as PTSD, claimed as due to an in-service personal assault, is remanded. 2. Entitlement to service connection for residuals of a TBI is remanded. Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate the issues on appeal. The Veteran has consistently alleged that he was repeatedly beaten during basic training by other soldiers in his unit. The Veteran expanded on his experience, which he alleges caused his PTSD and TBI, during his February 2021 hearing. Unfortunately, the AOJ has not fully developed the issue under the specialized laws that govern these unique claims for benefits. Pertinently, applicable VA laws provide that behavioral changes reflected in alternative evidentiary sources may be indicative of an unreported in-service physical or sexual assault, and the United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases). While the Veteran's service treatment and personnel records do not contain mention of psychiatric symptoms or the alleged personal assault, there is evidence that, subsequent to the alleged incidents, the Veteran's behavior and performance began to decline, culminating in several formal counselling’s in December 1981. The AOJ has not fully performed the development necessary to verify and substantiate these matters in the first instance. As per VA's applicable laws, the behavioral changes noted above are the type which may be indicative of an unreported in-service physical or sexual assault, and these facts must be weighed by the finder of fact to determine whether the in-service stressor occurred as reported. Further, if necessary, a medical opinion from an appropriate medical or mental health professional concerning the occurrence of the stressor may be obtained. 38 C.F.R. § 3.304(f)(3) (2017); Patton v. West, 12 Vet. App. 272 (1999). In light of the facts stated above, the Board concludes that VA's duty to assist the Veteran by providing a VA examination and obtaining a nexus opinion to address the etiology of his acquired psychiatric disability has been triggered. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, because the Veteran’s claim for service connection for a TBI is related to the inservice incidents which are claimed as the basis of the Veteran’s PTSD claim, the issue of TBI must also be developed through a VA examination and nexus opinion. While it would be helpful if the VA examiner would comment on whether the incidents occurred, as reported, the Board is the ultimate fact finder regarding this matter, the governing laws provide that soliciting such an opinion may be proper in these types of cases. 38 C.F.R. § 3.304(f)(3) (2017); Patton v. West, 12 Vet. App. 272 (1999). So that the examiner is fully apprised of the most complete and updated medical evidence pertaining to the Veteran's total psychiatric picture, updated private and VA treatment records should also be sought and obtained. Concerning VA treatment records, the Veteran should be asked to identify any and all VA and private facilities from which he has sought recent psychiatric and TBI treatment. Accordingly, the case is REMANDED for the following actions: 1. The AOJ must contact the Veteran and ask him to identify all VA facilities from which he has sought treatment for his psychiatric and TBI symptoms. 2. Further, the AOJ must obtain updated records of VA treatment. 3. The AOJ must contact the Veteran and request that he complete a release for any outstanding private treatment records that are pertinent to the issue remanded by the Board. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an examination to determine the nature and etiology of any acquired psychiatric disability and TBI present during the appeal period. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the examiner is requested to address the following: (a.) Identify all acquired psychiatric disabilities present since October 2014. (b.) Identify all residual symptoms of a TBI present since October 2015. (c.) Review the historical records for evidence that might reflect that the claimed stressor personal assault actually occurred during military service. In performing such review, the examiner must clearly identify the particular records which are felt to provide corroboration of the incident, and must give an adequate rationale for why it is felt that such records establish that a personal assault actually occurred during military service. (d.) Provide an opinion addressing whether any acquired psychiatric disability identified in part (a) is at least as likely as not the result of the Veteran's service, to include an in-service physical and assault - as necessary per the finding in part (c). (e.) Provide an opinion addressing whether any TBI identified in part (b) is at least as likely as not the result of the Veteran’s service, to include an in-service physical and assault - as necessary per the finding in part (c). *If the examiner feels that more than one VA medical examination is necessary to adequately address the Veteran’s disabilities, the necessary examinations should be scheduled. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. After undertaking any additional development deemed appropriate and giving the Veteran and representative a full opportunity to supplement the record, readjudicate the Veteran's pending issue in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.