Citation Nr: 0726430 Decision Date: 08/23/07 Archive Date: 08/29/07 DOCKET NO. 06-27 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESSES AT HEARING ON APPEAL Veteran, Veteran's friend ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Air Force from September 1976 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. As the veteran's claim for service connection for PTSD has a potential impact on the Board's decision with respect to the TDIU issue, the claim for service connection is inextricably intertwined with the TDIU claim. Therefore a decision by the Board on the veteran's latter claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Thus, appellate consideration of the claim for a TDIU must be deferred pending completion of the development and readjudication ordered by the Board in the remand below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on her part. REMAND The veteran contends that she developed PTSD as a result of an in-service sexual assault occurring on December 6, 1976, while she was undergoing training as a member of the United States Air Force. There is evidence of treatment for psychiatric symptoms in service both prior and subsequent to the date of the alleged sexual assault. Specifically, in November 1976, the veteran was evaluated as being immature and prone to dramatic and pseudological fantasies. After the alleged incident, in December 1976, the veteran was again found to be immature and a personality disorder was diagnosed. The veteran was evaluated by an Air Force psychiatrist prior to her discharge from service. This psychiatrist detailed a lengthy pre-service history of psychological trauma, to include childhood abuse. The veteran admitted to making false statements in the past and to using pity in order to gain social acceptance. Regarding the alleged assault in December 1976, the psychiatrist stated that the veteran's behavior had been "extremely provocative" towards her alleged attacker. Furthermore, the report stated that the veteran's alleged attacker "got the wrong idea" about the veteran's intentions with relation to sexual intercourse. The report does not state that sexual assault actually took place, emphasizing that the veteran had accused a fellow service member of attempting to rape her. This allegation was investigated at the time of its occurrence. The veteran's commanding officer stated that it was his belief that the alleged assault did not occur and that the veteran had fabricated her story. The officer relied on a psychiatric diagnosis of a personality disorder as well as investigation by the Air Force Office of Special Investigations (OSI) which had determined the allegation to be false. This notwithstanding, the psychiatrist's report did identify some sort of event transpiring which the veteran has subsequently identified as a stressor. The record does contain a current diagnosis of PTSD with a link to past sexual assault. The Board notes that the veteran has evidence of a current disability as well as an in-service history of symptoms of mental illness. The report of the examining Air Force psychiatrist, while implying a lack of credibility on the part of the veteran, does not specifically deny that an inappropriate sexual contact occurred between the veteran and a fellow airman. Further, the Board is troubled by the in- service psychiatrist's comments that the veteran had been "extremely provocative" towards her alleged attacker and that the veteran's alleged attacker "got the wrong idea" about the veteran's intentions with relation to sexual intercourse. The fact that the veteran sought psychiatric help in a period of time closely proximate to the date of the alleged attack is also probative when weighing the veracity of the veteran's claimed stressor. As there appears to be at least some evidence which might substantiate the claimed stressor along with a current diagnosis of an acquired psychiatric disorder, a comprehensive VA psychiatric examination must be afforded. 38 U.S.C.A. § 5103A(D) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(c)(4) (2006); see also McClendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that the veteran mentioned in her June 2007 Videoconference hearing that there are potentially statements from relatives which might serve to corroborate her stressor. The veteran is advised to submit this and any other information (in-service "buddy" statements, letters written home etc.) which might serve to verify that the claimed stressful event actually took place. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Inform the veteran that any information in her possession which might aid in the substantiation of her claim, to include statements form service "buddies," letters written home in- service, or any statements from friends, family members, health care professionals, or clergy which might be able to corroborate the veteran's alleged stressors or any identifiable behavioral changes associated with the claimed in- service sexual assault, should be submitted, or the names and addresses of personnel familiar with the incidents should be provided to VA so that identified evidence can be obtained. 3. Schedule the veteran for a comprehensive VA psychiatric examination for the purposes of determining if she meets the diagnostic criteria for PTSD and, if so, whether such is linked to an alleged in-service sexual assault of December 1976. The examiner is asked to review the service medical records, particularly the December 1976 report of the Air Force psychiatrist, to determine the validity of the alleged in-service stressor. Following a review of all of the service and post-service medical and psychiatric records, a thorough mental status examination and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following: 1. Does the veteran meet the diagnostic criteria for PTSD? 2. Is it at least as likely as not (50 percent or greater probability) that her PTSD or any other psychiatric disorder that may be currently present began during service or is causally linked to any incident of active duty, to include the alleged sexual assault in December 1976? The psychiatrist is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation or as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 4. After completion to the extent possible of the directed development, re- adjudicate the veteran's claim. If the claim remains denied, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. The veteran 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. 2006). _________________________________________________ R. F. WILLIAMS 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) (2006).