Citation Nr: 1010959 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 03-31 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for organic brain syndrome. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on December 29, 2009, which vacated a January 2009 Board decision and remanded the case for additional development. The issue initially arose from an April 2002 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. Therefore, the psychiatric disability issue on appeal has been revised to include consideration of the other applicable diagnoses of record in this case. The Board also notes that in November 2005 the Veteran testified at a hearing before a Veterans Law Judge who is unavailable to participate in the decision in this case. A copy of the transcript of that hearing is of record. In correspondence dated in February 2010 the Veteran stated he did not wish to appear at another hearing. 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 In its December 2009 order the Court, by incorporating the provisions of a Joint Motion for Remand, found the Board had erred in finding that VA had fulfilled its duty to assist in requesting service department records and as to whether a VA medical examination for organic brain syndrome was warranted. It was specifically noted that further action was required to request that the U.S. Army Crime Center produce any existing documents that may support the Veteran's claims of having been abused by a guard during confinement from July 13, 1966, to August 17, 1966, to include any report of an investigation conducted in August or September 1967. It was further noted, in essence, that the evidence of record included a diagnosis of organic mental disorders and that adequate reasons and bases had not been provided for the determination that a VA medical opinion as to this matter was not required. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board also notes that statements received in January 2009 from the Veteran's brothers and former spouse noted a change in his behavior and disposition after returning from service. These statements were not considered in the January 2009 decision, nor do they appear to have been considered as part of any medical evaluation. These statements, however, appear to be inconsistent with information the Veteran provided during psychiatric evaluations. A December 1993 private medical report noted the Veteran stated that at age 12 he had stolen cars and broken into places, and that he had seen a psychiatrist and was "locked up" for four years at a reform school where he had participated in boxing activities. In correspondence dated in March 1999 the Veteran stated that his VA doctors had indicated that he may have had PTSD prior to service that was aggravated during service. He also claimed in March 2003 to have sustained a head trauma when he was thrown from a jeep, but that the record includes no other evidence in support of that specific claim. Therefore, the Board finds that additional development is required prior to appellate review. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Records show the Veteran was provided VCAA notice, including notice that the requirements applied to all elements of a claim, by correspondence dated in September 2001 and March 2006. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2009). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c) (2009). In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search. 38 C.F.R. § 3.159(c)(2) (2009). For PTSD claims, VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. . . ." 38 C.F.R. § 3.304(f) (2009). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate an account of a stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3) (2009). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2009). VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (Jul. 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2009). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). In this regard, the Veteran contends that suffers from organic brain syndrome as a result of a jeep accident in service. Service treatment records show that he was involved in an automobile accident in June 1967 but there was no indication of injuries. On remand, the Veteran should be afforded an examination to determine the etiology of his claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the issues on appeal. He should be specifically requested to provide information as to his reported psychiatric evaluation at approximately age 12, to include any pertinent information from the reform school he attended. He should be notified that as his claim is based on an in-service personal assault, evidence from sources other than service records may corroborate an account of a stressor incident as defined in 38 C.F.R. § 3.304(f)(3) (2009). All specific examples of alternative sources of evidence listed in section 3.304(f)(3) must be included in the notification to the Veteran. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. Also, notify the Veteran and his representative and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009). 2. Appropriate action should be taken to request that the U.S. Army Crime Center produce any existing documents that may support the Veteran's claims of having been abused by a guard during confinement from July 13, 1966, to August 17, 1966, to include any report of an investigation conducted in August or September 1967. All attempts to procure records should be documented in the file. As many requests as are necessary to obtain any relevant records, unless further efforts would be futile. If those records are not obtained, notify the Veteran and his representative and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009). 3. Thereafter, the Veteran should be scheduled for a VA PTSD examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has an acquired psychiatric disorder, to include PTSD as a result of active service. An opinion should be provided as to whether the evidence of record indicates that a personal assault occurred. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Initial Evaluations for PTSD, revised on April 2, 2007. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. The Veteran should be scheduled for a VA examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has organic brain syndrome as a result of active service, to include due to an in-service jeep accident. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. The Veteran must be given adequate notice of the date and place of any requested examination. If feasible, a copy of all notifications, including the address where the notice was sent, should be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 7. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2009). _________________________________________________ LANA K. JENG 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).