Citation Nr: 0811323 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-06 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a nervous condition, to include an anxiety disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran served on active duty from December 1940 to December 1945 and from May 1951 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) from December 1999 and September 2003 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico, that denied the veteran's claims for service connection for PTSD and for a nervous condition, respectively. In August 2006, the Board remanded the veteran's present claim so that he could be provided proper notice with respect to his PTSD claim and so that he could be given a VA psychiatric examination to determine whether he has an acquired psychiatric disorder, to include PTSD, and if so whether such first manifested in, or is related to, service. The Remand required that the February 1952 notation of the veteran's nervous breakdown in his service medical records (SMRs) must be specifically considered and addressed by the examiner. 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 seeks service connection for PTSD and a nervous condition, to include an anxiety disorder. The veteran claims that his conditions are the result of combat experiences during World War II and the Korean War. Specifically, the veteran appears to contend that his psychiatric disorders stem from an incident in service in which he killed two soldiers during the Korean War and an injury he received in service during World War II. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). As noted in the August 2006 Board Remand, the veteran has been treated for numerous psychiatric disorders since service. A VA examination report dated in April 1986 notes a diagnosis of atypical anxiety disorder. More recent VA medical records dated throughout 2002 indicate that the veteran had an anxiety disorder. February 2003 records note that the veteran had an anxiety disorder and neurotic depression. VA medical records dated in April and August 2006 also noted that the veteran has an anxiety disorder. Regarding his claimed PTSD, as noted in the previous Board Remand, VA medical records dated in March 1998 and April 1999, note impressions of rule out PTSD. Private treatment reports dated in August 1977 and September 1979 indicate that the veteran may have experienced flashbacks related to experiences he had while in service. A February 1952 notation in the veteran's SMRs indicates that the veteran had a nervous breakdown under a section entitled notes and significant or interval history. It is not clear when this nervous breakdown occurred, and other SMRs of record do not indicate treatment for a nervous breakdown or any other psychiatric disorder while in service. The veteran's SMRs dated in November 1945 reflect that the veteran sustained a wound to his ankle due to combat with the enemy and subsequently had 18 days of hospitalization. The veteran received a Purple Heart citation for this wound. One of his claimed stressors is related to that incident. The Board finds that the veteran in this case is a combat veteran and his lay testimony is sufficient to establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). Based on the above evidence, in its August 2006 Remand, the Board found that the VA's duty to assist included a duty to provide a medical examination to the veteran pursuant to 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); and, Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Board specifically asked the examiner to consider and address the February 1952 SMR indicating that the veteran had a nervous breakdown. A VA examination was conducted in January 2007. The veteran's claims file and the Board's August 2006 Remand were reviewed by the examiner. Diagnoses of dementia and depressive disorder were given. PTSD and a nervous condition, to include an anxiety disorder, were not diagnosed. A GAF score of 60 was assigned. The examiner opined that the veteran's dementia and depressive disorder were not caused by, or a result of, service, nor were they first manifested in service, or related to events in service. As part of his rationale for this opinion the examiner noted that, after a careful review of the claims file, he found no evidence of a February 1952 notation that indicated that the veteran experienced a nervous breakdown. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, another VA medical opinion is necessary to fulfill VA's duty to provide a medical examination pursuant to 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA psychiatric examination to determine whether the veteran has PTSD or a nervous condition, to include an anxiety disorder. If either is diagnosed, the examiner is to provide an opinion as to whether it is as likely as not that such mental disorder(s) first manifested in service or are related to service. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must specifically address the February 1952 notation in the veteran's SMRs indicating he had a nervous breakdown, the treatment records noting "rule out PTSD", the 1977 and 1979 psychiatric treatment records indicating that the veteran experienced flashbacks, and the numerous VA psychiatric treatment records indicating that the veteran has an anxiety disorder. If PTSD is diagnosed, the specific stressors that support the PTSD diagnosis should be identified. In providing this opinion, the veteran's combat status is conceded. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If either of the claims remain denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the 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. 2007). _________________________________________________ RONALD W. SCHOLZ 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) (2007).