Citation Nr: 21032510 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-60 116 DATE: May 27, 2021 REMAND Entitlement to service connection for a low back disability is remanded Entitlement to service connection for tine pedis is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is remanded. Entitlement to service connection for an eye injury, to include a vision disability diagnosed as diabetic retinopathy, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for burn residuals of the left hand index finger is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to a compensable rating for service-connected fibrous breast is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A Board hearing was conducted via video conference in conjunction with the RO in Roanoke, Virginia. A transcript of this hearing is contained within the electronic claims file. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge (VLJ) shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(3). This provision "extends the VA's duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance." Sullivan v. McDonald, 815 F.3d 786, 793 (2016). VA's duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). A veteran, however, must provide VA with enough information to obtain the private treatment records, such as the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided; the veteran also must execute the necessary authorization for VA to obtain these records. The United States Court of Appeals for Veterans Claims (CAVC) has held that "reasonable efforts" under 38 C.F.R. § 3.159(c) generally consists of "an initial request for the records and, if the records are not received, at least one followup request." McKinney v. McDonald, 28 Vet. App. 15, 35 (2016). If, however, VA is unable to obtain those records after making reasonable attempts, it must provide notice of that fact to the claimant; such notice must include that it is the ultimate responsibility of the claimant to obtain the records and a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits those records. 38 C.F.R. § 3.159(e)(1). At the hearing, the undersigned VLJ noted that there was "very little evidence from VA since the [2017] Statement of the Case," despite the Veteran receiving treatment "quite regularly." June 10, 2020, Hearing Transcript (Tr.) at 3. The Veteran herself testified regarding the updated treatment and care she receives for many of these conditions. Id. at 5 (stating that the VA referred her out to the "Portsmouth Naval Hospital" for her breast condition), 21 (stating that she underwent an MRI for her migraines and vertigo on April 13, 2018, at the Hampton VA Hospital), 26 (stating that she goes to the eye doctor "every month" and gets "needles in [her] eyes once a month"), 27 (stating that she received private physical therapy for her back from Pivot in September 2018 and received x-rays of her lumbar spine from VA in December 2019). The undersigned left the record open for sixty days so that the Veteran could obtain these records. Id. at 3. Since the hearing, however, no routine records from VA or private treatment records have been associated with the Veteran's claims file. Indeed, with respect to claimed extant VA records, the VA has constructive receipt thereof but has not had an opportunity to associate such records with the claims file. Thus, remand for all claims are warranted. See Sullivan, 815 F.3d at 793; McKinney, 28 Vet. App. at 35; 38 C.F.R. § 3.159(c)(1), (3). Because of the nature of a claim for PTSD, the Board also will address why remand on a separate basis is warranted for that condition. To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed, in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The law provides that, if a claim for PTSD is based on an in-service personal assault, including MST, evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329, 335 (2008); 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to, records from law enforcement authorities rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases (STDs); and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to, request for 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Gallegos, 22 Vet. App. at 335; id. The Veteran has alleged that, during the summer of 1996 at Fort Wainwright, Alaska, she sexually was assaulted by a sergeant. The Veteran concedes that she never reported the incident while in service due to fear and embarrassment. The Veteran also noted that she experienced a change in behavior after the incident. October 16, 2014, VA Form 21-0781a. The Veteran testified that, shortly after separating from the service, she encountered legal trouble. By way of example, the Veteran "got into it with a cop," and "got into it with a lady"; she ended up receiving a "misdemeanor" and "getting in a lot of jail trouble." Tr. at 7. The Veteran submitted in July 2020 a PTSD disability benefits questionnaire (DBQ) completed by her private medical provider, which states that the Veteran's PTSD is related to her alleged stressor of military sexual trauma. The regulations for PTSD, however, require credible supporting evidence that the claimed in-service stressor actually occurred. Thus, the Board is unable to award service connection without that credible supporting evidence. See 38 C.F.R. § 3.304(f). A review of the records does not show that VA ever notified the Veteran of the types of evidence that can corroborate her claim for PTSD based on military sexual trauma as the regulations require. See 38 C.F.R. § 3.304(f)(5). The Veteran's testimony indicates that police records may exist to help show a change in her behavior immediately after she separated from service, which coincides with the time she alleges she was assaulted. Thus, these potential police records of the Veteran's criminal behavior shortly after service are relevant and could prove to be exceptionally probative. Had the Veteran been notified that these types of records could aid in substantiating her claim, she could have made attempts to obtain them. Furthermore, VA now has knowledge that these records exist, and it has a duty to assist the Veteran in the procurement of relevant non-federal records, such as those from state or local governments. Thus, remand for the claim for PTSD based on military sexual trauma, also is required for these separate grounds. See 38 C.F.R. §§ 3.159(c)(1), 3.304(f)(5). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain the claimed treatment records for the Veteran's fibrous breast condition from the Portsmouth Naval Hospital. 3. Send to the Veteran the necessary forms to identify any private treatment he has received for these conditions, including her physical therapy for her low back from Pivot, and afford her the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on the Veteran's behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 4. Notify the Veteran of the types of evidence that may be submitted to substantiate her claim for PTSD due to military sexual trauma as required by 38 C.F.R. § 3.304(f)(5). 5. Send to the Veteran the necessary forms to identify any police reports and other state/local government documents regarding legal trouble shortly after her separation from service and afford her the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on the Veteran's behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 6. Conduct any other development deemed necessary, to include providing the Veteran with examinations for any of the claims herein, and then readjudicate her 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 the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER 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.