Citation Nr: 21032095 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-12 534 DATE: May 25, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is remanded. REASONS FOR REMAND The Veteran, who is the Veteran in this case, had service from May 1987 to May 1991. This case is back before the Board of Veteran's Appeals (Board) because of a January 2021 Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (Court). The JMR vacated and remanded a decision from the Board that denied service connection for PTSD, to include MST. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. Entitlement to service connection for Posttraumatic Stress Disorder due to Military Sexual Trauma is remanded. The Veteran contends that her diagnosis for PTSD is related to service. Alternatively, she contends that her PTSD is due to military sexual trauma (MST). The parties agree remand is warranted to ensure that the duty to assist is satisfied regarding whether the VA examination relied upon is adequate and to obtain private treatment records. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran underwent a VA examination in May 2013. The parties now agree that the examination report is inadequate. See Barr, 21 Vet. App. at 311. The 2013 VA examiner failed to adequately address whether the Veteran suffered MST, or any other personal assault, during service. For example, the examiner noted that the Veteran reported being harassed and "slammed up against the wall" but provided no discussion as to whether being subject to such behavior may have caused a current psychiatric condition, to include PTSD. The VA examiner also appeared to dismiss the Veteran's reports of MST because she "was never forced into having sex," but failed to address whether the sexual behavior and manipulation she reported may have constituted MST. The VA examiner also stated that when the Veteran first obtained psychiatric treatment from VA it was due to childhood abuse, but records from the Veteran's initial psychiatric visit at VA show she endorsed a number of events, some of which were related to service, that may have led to the psychiatric issues she was seeking treatment for, including "physical assault, sexual assault, unwanted sexual experience, [and] exposure to war-zone." see May 2002, MH treatment note. Additionally, the VA examiner stated in his 2013 report that there was nothing in the Veteran's service personnel records to show MST, noting there could be other explanations for any possible MST markers. It is well established that a lack of notation in military service records is not substantive evidence that an incident of MST did not occur, and that military records may indicate other reasons for things that are actually MST markers. AZ v. Shinseki, 731 F.3d 1303, 1322 (Fed. Cir. 2013); 38 C.F.R. § 3.304(f)(5). In that regard, the parties agree that the VA examiner failed to adequately consider whether the Veteran's records show any indications of MST markers. See, e.g., Oct 6, 1988, STR, Oct. 11, 1988, STR. Remand is, therefore, warranted for a new VA examination. See Barr, 21 Vet. App. at 311. The examiner should address the alleged personal trauma that the Veteran has reported experiencing during service. Additionally, the examiner should adequately address the Veteran's treatment for the psychiatric condition, both with a qualified professional and reported self-medicating with drugs and alcohol. See [R. at 1060-61]; see also [R. at 22 (17-27) (Sept. 17, 2019, Board hearing transcript)]. Finally, the examiner must review The Veteran's service records and determine whether there are any indications of markers, including behavioral changes, that may also corroborate an indication of incurrence of MST during service. See 38 C.F.R. § 3.304(f)(5); AZ, 731 F.3d at 1322; Molitor v. Shinseki, 28 Vet. App. 397, 410-411 (2017). At the September 2019 Board hearing, the Veteran testified that she had obtained private psychiatric treatment from Dr. P., noting that she believed those records had been submitted to VA. While VA did receive letters from Dr. P. in May 2019 and May 2021, no actual records from the doctor are in the Veteran's file. Of note, Dr. P.'s letter indicated treating the Veteran since May 2018. See April 15, 2021, Dr. P. letter. However, the record fails to show that VA has ever asked the Veteran for authorization to attempt to obtain any records associated with her psychiatric treatment. See 38 C.F.R. § 3.159 (c)(1). On remand, the Board should ensure that the Veteran is provided the appropriate notice that she should either provide VA with the records from Dr. P. or provide appropriate authorization for Dr. P. to release the records to VA pertaining to the Veteran's psychiatric treatment. See 38 C.F.R. §§ 3.159(c)(1) & (e)(2). Unfortunately, the Veteran's service connection claim for PTSD must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from October 2018 to the present, documenting treatment for the issue on appeal. Also please contact the Veteran or her representative and ask if the Veteran has had any psychiatric treatment outside of VA which is not part of the file. If so, ask her to provide copies of treatment records or complete and return release forms and request copies of said documents and add those to the file. Specifically, the treatment notes from Dr. P starting in May 2018 should be requested and added to the file. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). 2. After all available records to include this remand order have been associated with the claims file, forward the claims file to an appropriate examiner to determine the nature, onset, and likely etiology of PTSD to include MST. The claims folder should be made available and reviewed by the examiner. The examiner must indicate a thorough review of this remand order. A VA mental health examination should be scheduled with the Veteran. All indicated studies should be performed. After reviewing the claims file, the examiner should offer the following opinion: Is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's PTSD to include MST had its onset directly during service, or is otherwise causally related to any event or circumstance of the Veteran's active service? The examiner should address the alleged personal trauma that the Veteran has reported experiencing during service. Additionally, the examiner should adequately address the Veteran's treatment for the psychiatric condition, both with a qualified professional and reported self-medicating with drugs and alcohol. The examiner must review The Veteran's service records and determine whether there are any indications of markers, including behavioral changes, that may also corroborate an indication of incurrence of MST during service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.