Citation Nr: 1006403 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 07-04 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran had active service from February 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for entitlement to service connection. The Veteran was scheduled to appear at a Travel Board hearing in December 2009, but failed to report as scheduled. As he has not shown good reason for his absence, his request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2009). The Board notes that the Veteran originally applied for entitlement to service connection for posttraumatic stress disorder (PTSD). However, as the evidence indicates that he has other diagnosed mental disorders, and the Veteran claims to have experienced psychiatric symptomatology since service, the Board finds that the claim should be reclassified as entitlement to service connection for a psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 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 Board finds that additional development is required before the appeal is ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2009). Service personnel records indicate that the Veteran was a cannoneer/assistant gunner in an artillery unit while stationed in Germany. He was never awarded a combat citation and does not claim to have been involved in combat during service. Service treatment records are negative for any reference to a psychiatric disorder during service. In a May 2006 VA treatment record, the Veteran indicated experiencing anger problems after leaving service. In an additional May 2006 VA treatment record, the Veteran stated that, while he was not exposed to combat during service, he either witnessed or took part in "atrocities" that caused him frustration. He stated that he had been living with constant anger ever since that time. The examiner's assessment was depression, but he also stated that he could not rule out bipolar spectrum. In a January 2007 VA treatment record, the examiner indicated a working diagnosis for bipolar disorder. He also indicated that he had strongly considered diagnosing PTSD, as a PTSD screening was positive, but the Veteran was a non-combatant. He also stated that the Veteran's main stressor was seeing a comrade accidentally crushed by a tank during maneuvers in Germany. In a statement submitted in February 2007, the Veteran reported having repeated nightmares regarding the incident with the tank described in the previous paragraph. He also indicated experiencing bad dreams about times when his rifle exploded at the firing range or driving his vehicle through the mountains at night. He also recalled experiencing trauma when his sergeant's gun misfired and cut open his throat. He also recalled that a battalion killed 27 soldiers because a round overshot the target. He did not supply any information (i.e. dates, names, places, etc.) that would allow for stressor verification. The Board notes that establishing service connection for PTSD requires: (1) Medical evidence diagnosing PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). Because the record does not show and the Veteran does not claim participation in combat, the Veteran's claimed stressors must be corroborated. His alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement for "credible supporting evidence" means that "the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Again, the Veteran did not submit sufficient evidence to allow for the verification of stressors. As such, service connection for PTSD cannot be granted at this time. However, as noted above, the record indicates that the Veteran has been diagnosed with other disorders, specifically bipolar disorder. In making this diagnosis, the January 2007 VA examiner indicated the he strongly considered diagnosing PTSD, but that he could not because the Veteran was a non- combatant. However, as the examiner suggested a link between the Veteran's current disorder and service, and the Veteran claims a continuity of symptomatology, manifested as constant anger, back to service, the Board finds that the Veteran's claim must be remanded in order to determine if the Veteran has any mental disorder related to service. See Clemons, supra. In order to aid in this determination, the Board finds that the Veteran should be afforded a psychiatric examination to determine the etiology of any current psychiatric disorder. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (noting the need for an examination when the evidence, in part, indicates that a disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability). In addition, the Board notes that a May 2006 VA treatment record indicated that the Veteran refused an antidepressant because of previous adverse reactions. Also, in a May 2005 VA treatment record, the examiner noted that the Veteran was being treated for depression at the mental health department. These notations suggest that some of the Veteran's treatment records are not included in the claims file. Indeed, none of the records already obtained appear to indicate a prescription for a psychiatric disorder. Accordingly, any outstanding records must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements. As part of this requirement, the AMC/RO must issue an additional VCAA letter, indicating the information and evidence necessary to substantiate a claim for a psychiatric disorder. 2. The AMC/RO should request the appellant to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided psychiatric care. After securing the necessary releases, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant, especially all records from the VA Medical Center in Dallas. 3. The AMC/RO should afford the Veteran a final opportunity to verify his stressors. The AMC/RO should issue the Veteran the appropriate stressor verification forms, and inform him of the necessity of his cooperation in verifying his stressors. 4. If the Veteran submits sufficient information to allow for an attempt at verification of his stressors, the AMC/RO should submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC), formerly the United States Armed Services Center for Research of Unit Records (USASCRUR) for verification. The request should be accompanied by a copy of the Veteran's DD 214, and a copy of this remand, and all associated documents. If the JSRRC is unable to provide information regarding any of the stressors alleged by the Veteran, it should provide specific confirmation of that fact. 4. Even if a claimed stressor is not verified, at the end of all above action, the AMC/RO should afford the Veteran a VA psychiatric examination to determine whether he has any psychiatric disorder related to service, to include PTSD due to a verified stressor(s). The examiner should determine the nature and extent of any currently demonstrated acquired psychiatric disorders. Following a review of the claims file, to include any service treatment or personnel records procured as part of this remand, all relevant medical evidence, a review of the lay statements and testimony, and a physical examination and any necessary testing, the examiner is asked to address the following question: a. If a claimed stressor was verified, is it at least as likely as not that the Veteran has PTSD consistent with the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) as a result of a verified stressor. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. b. Regardless of stressor verification, is it as least as likely as not (50 percent or greater degree of probability) that the Veteran has a psychiatric disorder other than PTSD that began during service or is otherwise etiologically linked to any in-service event? If so, such diagnosed disorder must be specifically identified. The physician 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 as to find against causation. A rationale should be provided for any opinion or conclusion expressed. If the examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e. without resorting to speculation, it should be so stated. The examiner must in such case explain why it would be speculative to respond. 5. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). _________________________________________________ ERIC S. LEBOFF Acting 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).