Citation Nr: 21041357 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-01 078 DATE: July 8, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and personal assault is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2017 VA Form 9, the Veteran elected a Board hearing and raised claims of PTSD secondary to personal assault. In January 2021, the Veteran testified before the undersigned Veteran's Law Judge. A copy of the transcript is associated with the claims file. The Veteran's original claim was for service connection for PTSD, depression, and panic attacks. The Board acknowledges that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. In the December 2017 VA Form 9, the Veteran raised allegations of PTSD secondary to personal assault. Therefore, in applying Clemons to the present case, the Board construes the Veteran's submission as an application for service connection for an acquired psychiatric disorder, to include PTSD and personal assault. The Veteran contends that being drafted into the Army caused him fear and panic. He contends he experienced nightmares about being drafted and being separated from his family. He asserts that he should not have been drafted because he was married and had a dependent daughter. He asserts that he experienced major depression, panic attacks, and PTSD because he should not have been drafted. He also asserts that he experienced separation anxiety from his family even though he was stationed in Italy as a clerk typist and his family joined him for majority his tour in Italy. See September 2013, November 2013, December 2017 Veteran's statement; April 2014 and March 2015 Veteran's Statements in Support of Claim; January 2021 Hearing Transcript at 3, 8. In September 2013, the Veteran requested his private psychiatrist, Dr. H.S., to opine that his mental stress from being drafted into the Army contributed to at least 20 percent of his mental illness. In October 2013, Dr. H.S., based on the Veteran's self-reported experience of being drafted and being diagnosed by another doctor in 2000 as having major depression and panic disorder, opined that the Veteran's "mental stress from being drafted into the U.S. Army contributed to at least 20% office [sic] psychiatric illness/disorder." Dr. H.S. noted that the Veteran reported the onset of his illness occurred in 2000 and that the Veteran has been under his care since 2005 requiring treatment in the form of medications and therapy. In September 2014, an Administrative Decision was issued making a "formal finding on a lack of information required to verify stressors in connection with PTSD claim." In the September 2014 rating decision, the RO found that the Veteran had not been diagnosed as having PTSD; and therefore, denied the claim. In October 2014, Dr. H.S., based on the Veteran's self-reports, opined that the Veteran's "mental stress from being drafted into the U.S. Army contributed to at least 20% of his PTSD." In April 2015, the Veteran sought reconsideration of his original claim for major depression, panic attacks and PTSD, which was previously denied. See April 2015 Veteran's Statement in Support of Claim. According to the Veteran, the basis for his PTSD claim is his fear of dying in Vietnam and the anguish he felt being separated from his wife and daughter. Id. It should be noted that the Veteran was not deployed to Vietnam and his family joined him for the majority of his tour in Italy. See December 2017 Veteran's statement Further, in July 2017, Dr. H.S., based on the Veteran's self-reports of his fear of dying for being drafted during the Vietnam war, diagnosed the Veteran as having symptoms of PTSD, anxiety, and major depression. He also opined that "the above disorders have persisted and were precipitated by trauma of being drafted/military service." It should be noted that while the Veteran feared dying if he was sent to Vietnam, the Veteran was sent to Italy and not Vietnam. In February 2018, Dr. H.S. diagnosed the Veteran as having a panic disorder (active), generalized anxiety disorder (active), PTSD (active), and dysthymia (partial remission). In June 2015, the Veteran was afforded a VA examination. The examiner noted that he reviewed the VA e-file, but not the Veteran's claims file as it was not sent by the RO. The Veteran reported he was taking medication for depression and anxiety. When describing the Veteran's mental health history, the examiner referred to an examination that occurred in September 2014, but no such examination exists in the claims file. The examiner diagnosed the Veteran with unspecified personality disorder and a history of depression and anxiety. Though the examiner acknowledged Dr. H.S. identified that the Veteran had PTSD, he noted that Dr. H.S. did not explain whether the Veteran met the criteria under DSM-V. The June 2015 examiner opined that the Veteran's: (1) "history of a diagnosis of (a) major depression that is less likely that [sic] not incurred in or caused by during service, [and (2)] panic attacks are less likely than not due to or the result of depression." The examiner's rationale was that the "veteran failed to describe [symptoms] associated with major depression and panic disorder. By report [the Veteran] takes medication for [symptoms] associated with mood disruption." The examiner did not reconcile that the Veteran took medication for depression and anxiety, as explained by Dr. H.S., and the Veteran inability to describe any current symptoms for those conditions. He examiner did not discuss if the Veteran's depression or anxiety had resolved. Moreover, the examiner did not perform a Disability Benefits Questionnaire (DBQ) in assessing the Veteran for PTSD. Considering the foregoing, the Board finds the June 2015 VA examination inadequate. Once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Board regrets the delay, a remand is required to afford the Veteran a new VA examination before the Board can adjudicate the Veteran's claims. In December 2017, the Veteran raised for the first time claims of alleged personal assault while in-service by his drill sergeant. See December 2017 Veteran's Statement in Support of Claim; January 2021 Hearing Transcript at 3. The record does not reflect that the RO provided the appropriate notice to the Veteran or his representative about how to substantiate a claim for personal assault. Accordingly, the Veteran's claim must be remanded allowing the Veteran and his representative the opportunity to provide evidence to support his personal assault claim. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a notice letter in connection with his claim for service connection for a psychiatric disorder, based in part, on an alleged in-service personal assault. The letter should (1) inform him of the information and evidence that is necessary to substantiate the PTSD claim based on personal assault; (2) inform him about the information and evidence that VA will seek to provide; and (3) inform him about the information and evidence that he is expected to provide. Specifically, this letter should be compliant with 38 C.F.R. § 3.304(f)(5), advising the Veteran of specific examples of alternative forms of evidence to corroborate his account of an in-service assault and that behavioral changes may constitute credible supporting evidence of the stressor. This letter should also include a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). 2. After allowing the Veteran and his representative reasonable time to respond to the above request and upon completing any other development necessary, schedule the Veteran for an in person examination by an appropriate VA examiner to determine the nature and etiology of any acquired psychiatric disorder(s), to include PTSD and personal assault. 3. Provide the VA examiner the Veteran's complete claims file, including this Remand order, and a clear and detailed explanation as to the differences between the requirements applicable to service connection for PTSD and the requirements applicable to service connection for an acquired psychiatric disorder other than PTSD. 4. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran's conditions from the Veteran, the examiner is requested to: a. Identify all of the Veteran's acquired psychiatric disorders separately. b. Opine whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's acquired psychiatric disorder, other than PTSD is attributable to service. c. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is attributable to service; and d. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claim of PTSD due to an in-service personal assault is attributable to service. It is requested that the examiner address Dr. H.S.' opinions regarding the Veteran's acquired psychiatric disorders, to include PTSD. 5. The examiner must provide detailed rationale for all opinions proffered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the aforesaid inquiries cannot be provided without resorting to speculation, the examiner is requested to provide an explanation as to why this is so and to identify what additional development, if any, would permit the requested opinion to be rendered. 6. After completing the foregoing and any other development necessary, readjudicate the Veteran's claims. 7. If any benefit sought on appeal remains denied, a Supplemental Summary of the Case (SSOC) should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Agarwal, 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.