Citation Nr: 21042538 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-18 914A DATE: July 13, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) claimed as due to military sexual trauma (MST) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1977 to October 1987 and January 1989 to March 1993. In an August 1994 administrative decision and an April 2016 Military Eligibility Decision, VA determined that the Veteran was not eligible for VA compensation benefits for a period of active duty from January 1989 to March 1993, because he received a bad conduct discharge. See August 1994 Administrative Decision and April 2016 Award Print. Hence, any grant of compensation benefits may not be based on a disease or injury that was incurred or aggravated during that period. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in January 2021. The transcript is of record. By way of history, the Veteran submitted a claim for entitlement to service connection for PTSD, received by VA in July 2015. See July 21, 2015 VA 21-526EZ, Fully Developed Claim (Compensation). An April 2016 rating decision denied the claim. Less than one year after the initial April 2016 rating decision denying the claim, the Veteran, through his attorney, submitted a positive opinion in support of his claim with a request to reconsider in August 2016. See August 2016 Medical Treatment Record Government Facility. An October 2016 rating decision continued the previous denial for service connection for PTSD due to MST and the Veteran subsequently submitted a notice of disagreement (NOD) in March 2017 asserting entitlement to service connection for PTSD. See March 2017 NOD. A claimant, or his or her representative, must file the NOD within one year from the date that that agency mails notice of the determination to initiate an appeal. 38 C.F.R. § 20.302(a). The Veteran subsequently submitted an appeal determined as timely following the February 2018 statement of the case (SOC). See December 2018 Appeal Notification Letter. Although the February 2018 SOC determined the claim date as August 5, 2016, the date the reconsideration request was received by VA, considering the March 2017 NOD as well as new and material evidence were received within one year of the initial April 2016 rating decision, the Board finds that the Veteran's current claim has been pending back to the initial claim date of service connection, July 21, 2015. The Board will treat the claim as encompassing all psychiatric disorders, not just PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For the following reasons, the Board will remand this claim. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD claimed as due to MST, is remanded. There are outstanding records not yet obtained that are relevant to the claim. During the January 2021 Board hearing, the Veteran reported receiving Social Security Administration (SSA) disability benefits for his depression prior to receiving SSA retirement benefits. See January 2021 Hearing Transcript. The Veteran also reported that he had gone through several 28 day rehabilitation programs for his mental health and substance abuse issues through a non-VA Medicaid program in New York City. The Veteran also reported several psychiatric hospitalizations. A November 2014 VA treatment record noted previous psychiatric admissions from 2004 to 2012 in New York, to include at the Brooklyn VAMC, Samaritan Village, Daytop Village, Montrose facility, Substance Abuse Rehabilitation Program (SARP) at New York VAMC. See July 2015 Medical Treatment Record Government Facility. A remand is warranted to obtain the aforementioned records. The Board acknowledges a July 2016 private opinion submitted in support of the claim. See August 2016 Medical Treatment Record Government Facility. However, the Board notes that the opinion did not indicate a review of the record and was based solely on the Veteran's lay statements. The Veteran has provided conflicting reports of PTSD onset. The Veteran reported in a June 2009 VA treatment record that his PTSD stems from body retrieval activities in Jonestown during his military service and stated he gets flashbacks of seeing the bodies and smell of decaying bodies. See September 2015 CAPRI and April 2016 CAPRI. He had consistently denied a history of physical or sexual abuse until 2014 when he initially reported his military sexual trauma. See April 2016 CAPRI (2). Considering the current DSM-5 diagnosis of PTSD based on the reported MST, the Board finds that a remand is also warranted to obtain a VA examination and opinion. See October 2016 CAPRI. Additionally, no attempt has been made to verify the reported stressor regarding his military duties of retrieving and handling deceased bodies. The Veteran's claim must also be remanded for the AOJ to attempt to verify the Veteran's reported stressor. The matter is REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, to include his psychiatric hospitalizations from 2000 to 2012 at Brooklyn VAMC, Montrose VAMC, New York VAMC, and any other outstanding VA treatment records, to include from 2018; and all private/non-VA treatment records, to include from Samaritan Village and Daytop Village, as well as all treatments at 28 day rehabilitation programs for his mental health and substance abuse issues through non-VA Medicaid program in New York City. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. After obtaining any necessary identification of sources and authorization by the Veteran, contact the SSA and request a copy of the Veteran's complete SSA disability benefits file, if available, including all associated medical records, and associate all records received with the claims file. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. The AOJ must take all appropriate steps to verify the Veteran's reported stressor of retrieving bodies as part of his military duties. 4. After development #1, #2, and #3 have been completed, schedule the Veteran for a VA psychiatric examination to determine whether any diagnosed psychiatric disorder is related to military service. The Veteran's file must be made available to and be reviewed by the examiner in conjunction with the examination. (a) Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found during the pendency of this claim (i.e. since July 2015). (b) The examiner should then opine whether any behavioral changes, to include attempted robbery and absent without official leave (AWOL) in April 1989 that resulted in his dishonorable discharge, and subsequent substance abuse, or any other reported changes or incidents are behavioral changes that support his claimed sexual assault stressor. (c) If the examiner determines that the Veteran has PTSD, provide an opinion whether such is at least as likely as not (50 percent probability or greater) etiologically linked to any in-service stressor. The examiner should specifically address what stressors any PTSD diagnosis is predicated on. (Continued on the next page) (d) For each currently diagnosed psychiatric disorder other than PTSD, the examiner should provide an opinion regarding whether the disorder is at least as likely as not (50 percent or greater probability) was incurred during the Veteran's active service or is otherwise etiologically related to any event or circumstance of his active service. The examiner must specifically address the VA treatment records and July 2016 private medical opinion indicating that the Veteran has PTSD related to MST. A full and complete rationale for all opinions expressed must be provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.