Citation Nr: 1008399 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 07-00 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, dysthymia, and generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied the Veteran's petition to reopen his previously denied claim for PTSD and denied entitlement to service connection for depression, anxiety, and adjustment problems because new and material evidence had not been submitted. Jurisdiction over the Veteran's claim has remained with the RO in Louisville, Kentucky. The Board denied entitlement to service connection for PTSD in an October 1998 decision. The Board did not consider whether service connection was warranted for any of the Veteran's currently diagnosed psychiatric disabilities, including depression, dysthymia, and generalized anxiety disorder. Therefore, the Board need not consider whether new and material evidence has been submitted to reopen the current claim for a psychiatric disability and a new decision on the merits is required. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (A claim based on a new diagnosis is a new claim, and is adjudicated without regard to prior denials that did not consider that diagnosis); cf. Velez v. Shinseki, 23 Vet. App. 199 (2009) (in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries). Here the claim is based on distinct diagnoses. 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 Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. VA regulations provide that where a "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2009); see 38 C.F.R. § 19.9 (2009). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Veteran was afforded VA examinations for a psychiatric disability in November 2003 and August 2007. He has reported that he experienced various psychiatric symptoms, including anxiety, in service and that such symptoms continued ever since he served in Vietnam. He was diagnosed as having generalized anxiety disorder, dysthymia, major depression, and PTSD. The examiners who conducted the November 2003 and August 2007 VA examinations did not provide medical opinions with regard to whether the Veteran's generalized anxiety disorder, dysthymia, or major depression were related to service. In view of the Veteran's reports of symptoms beginning in service and continuing to the present, such an opinion is needed. As neither the November 2003 nor August 2007 VA examination reports included an opinion as to whether a relationship existed between the Veteran's psychiatric disabilities and service, a new examination is required. In an October 2003 statement (VA Form 21-4138), the Veteran claimed that while stationed at Fort Knox during basic training in late May 1968, he witnessed two prisoners get shot and killed by military police officers when they attempted to escape while being escorted from the stockade. The Veteran's service personnel records indicate that he was stationed at Fort Knox for basic training in May 1968. The U.S. Army and Joint Services Records Research Center (JSRRC) or other branch of the service department has not yet been contacted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his current psychiatric disabilities, including PTSD. All indicated tests and studies should be conducted. The claims folder must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's psychiatric disabilities (i.e. any disability shown at any time since his current claim) are etiologically related to service. The examiner must provide a rationale for each opinion. If the examiner finds that the Veteran meets the criteria for a diagnosis of PTSD, the examiner should specify the stressors supporting the diagnosis. The examiner is advised that the Veteran is competent to report his symptoms and participation in combat; and such reports must be considered in formulating any opinions. 2. Prepare a summary of the claimed in- service stressor for which there is sufficient information to make an inquiry, to include the date and assigned unit. The claimed in-service stressor includes witnessing the death of two prisoners shot by military police officers while being escorted from the stockades at Fort Knox in May 1968. This summary, along with a copy of the Veteran's DD Form 214 and pertinent service personnel records should be sent to the JSRRC or other appropriate entity. JSRRC or other appropriate entity should be asked to provide any information that might corroborate the alleged stressor. The Veteran should be asked for any additional information needed to undertake this research. 3. The agency of original jurisdiction should review the examination reports to ensure that they contain the information requested in this remand and are otherwise complete. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Mark D. Hindin 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).