Citation Nr: 1754145	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-43 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to June 1975. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016);  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The claim must be remanded for the AOJ to attempt to verify the Veteran's claimed in-service stressors and to afford the Veteran a VA examination. 

The Veteran testified at the hearing that he was physically and sexually assaulted on multiple occasions while in service.  Additionally, the claims file includes in-service and post-service mental health treatment records with multiple  psychiatric diagnoses, including a PTSD diagnosis in 2013.  However, there is no medical opinion in the record that assesses whether any current psychological disorder is connected to his military service.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)
1. Provide the Veteran and his representative with legally adequate notice of what is needed to support a claim for service connection for PTSD based on in-service personal assault under 38 C.F.R. § 3.304(f)(5).  He should then be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 

2. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file.  Attempt to obtain any records identified by the Veteran and associate them with the claims file.

3. Obtain any outstanding VA medical records for the Veteran regarding his psychiatric disorder and any treatment related to physical assaults, including the alleged stabbing incident, and associate them with the claims file.

4. Specifically request from the National Personnel Records Center (NPRC), the U.S. Army Legal Services Agency (USALSA), and/or any other appropriate government records center a copy of the record of trial regarding an assault incident involving the Veteran and the accused, G. Mascot. 

5. Specifically request from the National Personnel Records Center (NPRC), the U.S. Army Legal Services Agency (USALSA), and/or any other appropriate government records center any reports of assault involving the Veteran. 

6. After any records pertaining to the claimed in-service stressors have been obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder.  The claims file should be made available to the examiner for review prior to examination.  All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. 

A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions.  Based upon a review of the entire record and history provided by the Veteran, the VA examiner should provide opinions with supporting explanations as to the following:

Whether there is a current diagnosis of an acquired psychiatric disorder and whether any diagnosed acquired disorder's onset was due to an event or incident of the Veteran's period of service. 

As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, the examiner's attention is drawn to the following:

* July 1972 enlistment examination noting the Veteran indicated that he had symptoms of depression or excessive worry.  However, the evaluator indicated the Veteran was in good health.

*October 1972 service treatment record indicated that the Veteran was a "heroin addict;"

* November 1972 service treatment record noting the Veteran's emotional and attitudinal problems might compromise his judgment and reliability, and he was not eligible for overseas movement.

* November 1972 service treatment record noting the Veteran felt tension and anxiety, and indicating that Veteran took an overdose of Nembutal.

* May 1973 service records from the Department of Psychiatry at USAGH, Landstuhl regarding the Veteran's treatment following a suicide attempt.

* November 1973 service treatment record noting the Veteran reporting being thrown from a third story window by fellow soldiers.  The treating physician noted that he would check to see if the Veteran could be transferred.

* October 1974 service records documenting the Veteran's treatment at Walter Reed Army Medical Center Psychiatry Service.

*The Veteran had a period of non-creditory military service ("time lost"), from January 24 to June 23, 1975

* June 1975 service examination noting the Veteran indicated he had symptoms of depression or excessive worry, loss of memory or amnesia, nervous trouble, and periods of unconsciousness.  The evaluator indicated the Veteran was in good health but noted the Veteran was in a mental institution and was stabbed. 

* Social Security Administration (SSA) records containing the Veteran's mental health evaluations from 2001 and 2002

* Records from VA hospital Upstate New York documenting the Veteran's psychiatric treatment from 2004, 2005, 2011, and 2012.

* March 2013 diagnoses of PTSD from VA hospital Upstate New York, but did not discuss etiology.  

* The May 2016 Board hearing, during which the Veteran testified that his psychiatric disorder onset was due to events in service, including multiple sexual and physical assaults. 

A thorough explanation must be provided for the opinion rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 

The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find that the examination is sufficient. 

7. After completing all indicated development, readjudicate the claim in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response.  Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition.

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 2014).



_________________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).



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