Citation Nr: 1516772 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 13-19 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for treatment purposes only under 38 USC Chapter 17 for anxiety, not otherwise specified, and mood disorder. REPRESENTATION Appellant represented by: South Dakota Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1995 to January 1998 and from December 1998 to December 2004. This matter comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The record reflects the Veteran has recently moved and requested transfer of his file from Huntington to Sioux Falls, SD. In a March 2015 letter to the RO the Veteran withdrew several claims and the claims remaining on appeal are reflected on the cover page. The issue(s) of an acquired psychiatric disorder and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT An active mental illness or psychosis (borderline personality disorder) did not develop during or within two (2) years of separation from active duty service. The Veteran has a current diagnosis of anxiety, not otherwise specified, and mood disorder. CONCLUSION OF LAW The criteria for entitlement to benefits for treatment purposes for mental illness pursuant to the provisions of 38 U.S.C.A. § 1702 have not been met. 38 U.S.C.A. §§ 1110, 1702(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted entitlement for treatment purposes only under 38 USC Chapter 17 for anxiety, not otherwise specified, and mood disorder. 38 U.S.C.A. § 1702(b) provides that any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War. The Veteran served during the Persian Gulf era making 38 U.S.C.A. § 1702(b) applicable. The evidence of record reflects that the Veteran had a positive posttraumatic stress disorder (PTSD) screen in January 2007 and a referral for treatment was indicated. He was scheduled for an appointment 8 days after the screening and a note indicated that when the VA called to advise him of the appointment there was no answer. VA treatment records shows that the Veteran was first diagnosed with depression and anxiety during a behavioral health lab consultation in May 2009. This record further noted that the Veteran met the criteria for PTSD but it is unclear if this was done in accordance with the DSM-IV. A July 2009 VA mental health treatment record diagnosed anxiety disorder and mood disorder. Thus, the first diagnosis after a full mental health evaluation occurred in 2009, over four years after the Veteran separated from service. Even assuming January 2007 positive screen could serve as the first diagnosis, this still is over 2 years after the Veteran separated from service. As such, service connection for treatment of mental illness is denied because there is no evidence of a diagnosis within two years of being discharged from active service. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Significantly, this claim is governed by the provisions of Chapter 17 of Title 38 of the United States Code. There is case law to the effect that the VCAA and its implementing regulations do not apply in this matter. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). In Beverly v. Nicholson, 19 Vet. App. 394, 403 -04 (2005), however, although not explicitly so finding, the Court appeared to assume the VCAA applies to a Chapter 17 claim (but then held that the failure to comply with the VCAA notice requirements in that case was non-prejudicial). Regardless, the Board finds that adequate notice has been provided and the Veteran has had a fair opportunity to present arguments and evidence in support of this claim. Further, the Veteran has been continuously represented by an experienced attorney and has submitted argument in support of his claim. As for a duty to assist, the Board is satisfied that any VA duty to assist has been met as all pertinent private hospitalization records were submitted or obtained. Pertinent VA records have also been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for psychosis/mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C.A. § 1702 is denied. REMAND The Veteran has asserted entitlement to service connection for an acquired psychiatric disorder other than PTSD. Specifically, the Veteran claims that he has an acquired psychiatric disorder that is directly related to service. The Veteran does have a current diagnosis of an acquired psychiatric disorder and he has not been afforded a VA examination to determine the etiology of such diagnosis, as such the Board is remanding for a VA psychiatric examination. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2014); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has also asserted entitlement to service connection for PTSD. Specifically, he has provided in-service stressors that he believes led to his PTSD. The Veteran does have a current diagnosis for PTSD; however, these diagnosis have not been linked to a verified in service stressor. As such, the Board is remanding the Veteran's claim to the RO in order for his in-service stressor to be verified. Additionally, once the in-service verification has been completed the Board requests that the RO schedule the Veteran for a VA psychiatric evaluation to determine if the Veteran's PTSD is etiologically related to such in service stressor. See 38 C.F.R. § 3.304 (f). Accordingly, the case is REMANDED for the following action: 1. The AOJ/RO should send a letter to the Veteran informing him of the regulations pertaining to service connection for PTSD under 38 C.F.R. § 3.304(f). Specifically request that he provide any additional detailed stressor information to include dates, places, assigned units and names associated with the stressful events. 2. The AOJ should take any necessary development to verify independently the stressor information he provides, including contacting the JSRRC, NARA, NPRC, or other appropriate agency, and obtaining the Veteran's entire personnel file. The agencies contacted should provide any available information, to include unit records that might corroborate the Veteran's alleged in-service stressor from his period of active military service. Any additional action necessary for independent verification of the particular alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the RO/AMC must notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information, and describe any further action to be taken. 3. After completing the above development, the AOJ should arrange for a VA psychiatric examination with the appropriate clinician to determine the nature and etiology of any claimed acquired psychiatric disorder, to include PTSD. The current nature of and likely etiology of any diagnosed psychiatric disability should be determined. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Additionally, a copy of this remand and stressor verification should also be made available to the examiner. The examiner should provide opinions as to the following: In regards to any potentially diagnosed acquired psychiatric disorder, to include PTSD, the examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed acquired psychiatric disorder, began during active service or is related to any incident of service. A thorough rationale should be provided for all opinions expressed. 4. Following completion of the above and any other development deemed proper, readjudicate the Veteran's claims. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative a Supplemental Statement of the Case. 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs