Citation Nr: 1025191	
Decision Date: 07/07/10    Archive Date: 07/19/10

DOCKET NO.  07-13 279A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to service connection for an acquired psychiatric 
disorder, including posttraumatic stress disorder (PTSD). 



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Benjamin M. Diliberto


INTRODUCTION

The Veteran had active service from August 1970 to August 1973. 

This matter comes before the Board of Veterans' Appeals (BVA or 
Board) on appeal from a September 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, 
Texas, that denied the benefit sought on appeal.  The Veteran 
appealed that decision and the case was referred to the Board for 
appellate review.  During an October 2007 hearing before a 
Decision Review Officer, the Veteran withdrew the issue of 
entitlement to service connection for hypertension.  Accordingly 
that issue is no longer before the Board. 

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the appellant if 
further action is required.


REMAND

The Veteran has claimed entitlement to service connection for an 
acquired psychiatric disorder.  As explained below, the Board 
finds that additional notice must be provided to the Veteran and 
that additional development is necessary prior to adjudication of 
the claim.  

The Veteran first claimed entitlement to service connection for 
posttraumatic stress disorder in April 2006.  In an attached 
stressor statement the Veteran reported that during service, in 
1970, she was raped.  She stated that the morning following her 
rape she reported the incident to the Military Police, but that 
they stated that they did not have a record of anyone with the 
name she provided.  A September 2006 rating decision denied 
entitlement to service connection for PTSD, finding that no 
stressor had been verified.  The Veteran submitted a Notice of 
Disagreement (NOD) in January 2007.  A Statement of the Case 
(SOC) was issued in April 2007 and the Veteran filed a 
Substantive Appeal (VA Form 9) in May 2007.  In October 2007 the 
Veteran submitted an additional stressor statement further 
detailing her claimed military sexual trauma.  Since then, the 
Veteran has testified at a hearing before a Decision Review 
Officer, submitted statements from her siblings and submitted 
numerous written statements providing information on her claimed 
in-service stressor.  In these statements she consistently 
indicates having reported the incident to the Military Police and 
having received medical attention for her injuries.  

Cases involving allegation of a personal assault fall within the 
category of situations in which it is not unusual for there to be 
an absence of service records documenting the events of which the 
Veteran complains.  See, e.g., Patton v. West, 12 Vet. App. 272, 
281 (1999).  As noted under Paragraph 5.14(d), Part III, of VA's 
Adjudication Procedure Manual, M21-1, personal assault is an 
event of human design that threatens or inflicts harm.  Examples 
of this are rape, physical assault, domestic battering, robbery, 
mugging, and stalking.  Service records may not contain evidence 
of personal assault, and alternative sources, including 
testimonial statements from confidants such as family members, 
roommates, fellow service members, or clergy, may provide 
credible evidence of an in-service stressor premised on personal 
assault.  See YR v. West, 11 Vet. App. 393, 399 (1998).  The 
Manual also notes that since personal assault, to include sexual 
assault, can be an extremely personal and sensitive issue, many 
incidents of personal assault are not officially reported, making 
it difficult to obtain direct evidence, and requiring that 
alternative evidence be sought.  Id.

Under 38 C.F.R. § 3.304(f)(3), if a PTSD claim is based on an in-
service personal assault, evidence other than the Veteran's 
service records may corroborate the Veteran's account of the 
stressor incident.  Examples of such evidence include, but are 
not limited to: records from law enforcement authorities, rape 
crisis centers, mental health counseling centers, hospitals, or 
physicians; pregnancy tests or tests for sexually transmitted 
disease, and statements from family members, roommates, fellow 
service members, or clergy.  Evidence of behavior changes 
following the claimed assault is one type of relevant evidence 
that may be found in these sources.  Examples of behavior changes 
that may constitute credible evidence of the stressor include, 
but are not limited to: a request for a transfer to another 
military duty assignment; deterioration in work performance; 
substance abuse; episodes of depression, panic attacks, or 
anxiety without an identifiable cause; or unexplained economic or 
social behavior changes.  38 C.F.R. § 3.304(f)(3) (2009). 

In addition, under 38 C.F.R. § 3.304(f)(3), 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.  

In this case, even though the Veteran has attempted to submit 
evidence of that nature, it does not appear that appropriate 
notice has been sent.  Since the record does not reflect that the 
Veteran received such notice, a remand is required for the RO/AMC 
to provide the Veteran with a specific VCAA notice letter 
necessary for PTSD cases based on in-service personal assault.  

Second, it does not appear that the RO/AMC made sufficient 
efforts to obtain evidence that corroborates the Veteran's 
statements regarding the alleged military sexual trauma.  There 
is no indication that the RO submitted a request to the U.S. Army 
and Joint Services Records Research Center (JSRRC) to attempt to 
verify the Veteran's alleged in-service stressor.  Therefore, the 
RO/AMC should attempt to independently verify the occurrence of 
the claimed incident through the JSRRC and any other appropriate 
authority.  See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c). 

Third, a review of the Veteran's post-service treatment records 
shows that she has been diagnosed with several mental disorder, 
including PTSD and depression.  In Clemons v. Shinseki, 23 Vet. 
App. 1 (2009), the Court pointed out that a claimant cannot be 
held to a "hypothesized diagnosis - one he is incompetent to 
render" when determining what her actual claim may be, and VA 
should therefore consider alternative current conditions within 
the scope of the file claimed.  Id.  The Board has preliminarily 
reviewed the case at hand and finds that Clemons is applicable 
here, as VA treatment records show a diagnosis of depression, and 
the reported history shows that the Veteran described the onset 
of her symptoms as having begun during service.  

As indicated under Clemons, other diagnoses are to be considered 
as part of the underlying claim.  To date, however, the RO has 
not adjudicated this claim so broadly as to incorporate 
psychiatric diagnoses other than PTSD, which includes the need 
for a VA examination to determine the nature of the disability 
and to provide a medical opinion on whether her condition is 
etiologically related to any aspect of her active service.  See 
38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should provide the Veteran 
appropriate VCAA notice compliant with 
38 C.F.R. § 3.304(f), as required for 
posttraumatic stress disorder claims based on 
in-service personal assault or harassment.  
In particularly, notice must advise the 
Veteran that evidence from sources other than 
her service records or evidence of behavior 
changes may constitute credible supporting 
evidence of the claimed in-service stressor.

2.  Thereafter, by all appropriate means and 
with any necessary assistance from the 
Veteran, the RO/AMC should seek to identify 
and obtain any federal and/or private records 
of pertinent evidence that are not yet on 
file.  In particular, the RO/AMC should 
attempt to obtain records showing that the 
Veteran reported her claimed sexual assault 
to military police or records showing that 
she was treated for injuries related to her 
claimed sexual assault.  Efforts to obtain 
these files should include a request to the 
JSRRC and any other appropriate records 
repository for research into corroboration of 
the Veteran's claimed in-service stressor.  

3.  After associating with the claims file 
all available records and/or responses 
received from each contacted entity, the 
RO/AMC should prepare a report detailing the 
occurrence of any specific in-service 
stressor deemed established by the record.  
This report is then to be added to the 
Veteran's claims file.  If the Veteran's 
claimed stressor is not verified then the 
RO/AMC should so state in its report.

4.  After all of the above have been 
accomplished, the RO/AMC should schedule the 
Veteran for a VA psychiatric examination by 
an appropriate examiner.  Any verified 
stressor should be clearly identified for the 
examiner.  The claims file, to include a copy 
of this Remand, must be made available to and 
be reviewed by the examiner in conjunction 
with the examination.  All indicated 
evaluations, studies and tests deemed 
necessary by the examiner should be 
accomplished and all findings reported in 
detail.  The examiner should identify any 
psychiatric disorder currently demonstrated 
by the Veteran and explain how the diagnostic 
criteria under the DSM-IV supports the 
diagnosis or diagnoses.  
	
a.  The examiner must then state whether 
it is at least as likely as noted (i.e., 
50 percent probability or greater that any 
identified current psychiatric disorder 
(other than PTSD) is related to active 
military service.

b.  If the RO/AMC has verified the 
Veteran's stressor then the examiner must 
also state whether it is at least as 
likely as not (i.e., 50 percent 
probability or greater) that any 
identified current posttraumatic stress 
disorder is related to the Veteran's 
verified stressor.	
5.  When the requested development has been 
completed the case should again be reviewed 
by the RO, to include consideration of any 
additional evidence submitted.  If the 
benefits sought are not granted the Veteran 
and his representative should be furnished a 
Supplemental Statement of the Case, and be 
afforded a reasonable opportunity to respond 
before the record is returned to the Board 
for further review.

By this remand, the Board intimates no opinion as to any final 
outcome warranted.  No action is required of the Veteran until 
she is notified by the RO.  The appellant has the right to submit 
additional evidence and argument on the matter or matters the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).



_________________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a decision 
of the Board on the merits of your appeal.  38 C.F.R. 
§ 20.1100(b) (2009).



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