Citation Nr: 1014907 Decision Date: 04/20/10 Archive Date: 04/30/10 DOCKET NO. 07-09 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right arm disorder (claimed as nerve damage) as secondary to service- connected residuals of stab wounds to the right upper arm, chest, and neck. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from November 1972 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2009, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). The Board notes that the Veteran also perfected an appeal of the RO's April 2004 denial of a compensable rating for residuals of stab wounds to the neck, chest, and upper right arm. But he withdrew that appeal in writing in a May 2005 statement. See 38 C.F.R. § 20.204 (2009). Therefore, theses issues are not currently before the Board. 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 Before addressing the merits of both claims on appeal, the Board finds that additional development of the evidence is required. First, the Veteran's VA treatment records on file from the VA Medical Center (VAMC) in Los Angeles, California only date to October 2005. If the Veteran has received additional VA treatment these records should be secured. VA's duty to assist includes obtaining records of his relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. § 3.159(c)(2), (c)(3) (2009). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). Therefore, the RO should take appropriate steps to determine whether the above VA medical records are available and if so, to obtain them on remand. Second, the RO must undertake further efforts to obtain possible missing service treatment records (STRs) - specifically, inpatient and possible "clinical" counseling records from Travis Air Force Base Clinic in California and from the 121st Medical Evacuation Hospital in Seoul, South Korea. Both sets of records would be dated sometime between June 1974 and November 1974. The Veteran indicates he was treated for stab wounds with stitches in Korea in 1974 and subsequently underwent mental health counseling in both California and Korea. See May 2009 hearing testimony at pages 4-6; August 2005 PTSD stressor statements; June 2003 personal statement; and earlier May 2001 claim. But the Board notes that throughout the appeal, the Veteran has been rather inconsistent with regard to identifying the precise date of the alleged in-service stabbing incident, in addition to the precise dates and specific locations of any subsequent in-service treatment. But VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002). VA is required to obtain the Veteran's STRs or other relevant service records held or maintained by a government entity. 38 U.S.C.A. § 5103A(c). When VA attempts to obtain records from a Federal department or agency, the efforts to obtain these records must continue until they are obtained unless it is reasonably certain they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3) (2009). In addition, when STRs are lost or missing, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This standard for VA is very high. Review of the claims file reveals the RO obtained the majority of the Veteran's STRs and all of his service personnel records (SPRs). However, it is possible that inpatient and clinical counseling reports exist but are not present in the claims folder. In this vein, records of inpatient or "clinical" treatment in service are sent to the National Personnel Records Center (NPRC) after 1-2 calendar years, but are kept in a separate file from the file containing other STRs. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Sections A and B. The Board is unable to discern whether a specific request for "clinical" records was made or whether the specific code to request records of inpatient or "clinical" was used. Given the obvious relevance of any missing inpatient or "clinical" counseling STRs in the adjudication of both claims at issue, the Board finds it necessary to remand the claim to ensure that all proper avenues for securing these records have been pursued and to afford the Veteran every benefit of assistance from VA. Third, at his May 2009 hearing, the Veteran's indicated he had been in receipt of disability benefits from the Social Security Administration (SSA) beginning in 1986. See hearing testimony at page 20. His SSA records are not on file and must be obtained before deciding these claims since these records may address the particular claims at issue. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Thus, a remand is warranted to obtain these records. Fourth, with regard to the Veterans Claims Assistance Act of 2000 (VCAA), the previous notice letter sent by the RO to the Veteran in July 2005 is not fully sufficient as to the PTSD and acquired psychiatric disorder claim. In this regard, the Board sees the RO attempted to provide the Veteran with sufficient notice for his PTSD claim. However, the July 2005 letter, although providing a PTSD questionnaire, did not fully address the unique criteria necessary to establish service connection for PTSD. Therefore, the Agency of Original Jurisdiction (AOJ) should advise the Veteran that establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Fifth, as to VCAA notice, despite his explicit claim for service connection for PTSD, the Veteran has also been diagnosed with a variety of other mental disorders during the course of the appeal - schizophrenia, depression, psychosis (NOS), and drug and alcohol dependence. See VA treatment summary notes dated from 1994 to 2002; VA mental health treatment records from 2005. At the hearing, the Veteran's representative also raised the issue of service connection for schizophrenia. See hearing testimony at page 3. The Court has held that in such situations the VA should consider whether service connection is warranted for any other acquired psychiatric disorder aside from PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that 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). Thus, there is some indication that the Veteran's symptoms arise from a psychiatric disorder other than PTSD. As such, in the present case, the Board cannot limit its analysis of the Veteran's claim solely to PTSD. That is, his PTSD claim potentially encompasses psychiatric conditions other than PTSD that are reasonably raised by the record. Therefore, the VCAA notice letter should also address service connection for an acquired psychiatric disorder (other than PTSD), as well. Sixth, the Veteran should be scheduled for a VA mental health examination with a medical opinion concerning the etiology of any current psychiatric disorder to include PTSD on the basis of in-service incurrence. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A proper diagnosis for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the in-service stressor, the RO already granted service connection for residuals of a stab wound to the right upper arm, chest, and neck based on an in- service stressor involving the stabbing of the Veteran in a bar in Seoul, South Korea sometime between June 1974 and November 1974. See December 2003 rating decision. Moreover, the Veteran's October 1975 separation examination verified scars to the upper right arm and chest. Further, the Veteran's lay description of the details of this stressor has been consistent, with the exception of the exact date it occurred. See hearing testimony at pages 4-6; stressor statements dated in June 2003, August 2005, and July 2006. In light of the above evidence, there is credible supporting evidence of his alleged stressor. 38 C.F.R. § 3.304(f). With regard to a current diagnosis, VA mental health treatment records dated in 2005 diagnose the Veteran with PTSD in several instances. However, a July 2005 VA biopsychosocial assessment only rendered a diagnosis of rule / out PTSD. Other VA treatment records and earlier private treatment records diagnose the Veteran with various other psychiatric disorders, without any mention of PTSD or the Veteran's military service. Therefore, at present, there is insufficient medical evidence of a link between current PTSD symptomatology and the verified in-service stressor. A detailed and thorough VA examination and opinion is necessary to resolve this question. On a side note, the Board sees that in response to the RO's earlier request for mental health treatment records from LA General Hospital dated in 1985 or 1986, the provider responded with only recent 2003 records. This is, in essence, a negative reply. In fact, an earlier December 1989 VA inpatient report noted that the Veteran was only first hospitalized for his psychiatric problems in 1988, as opposed to the mid-1980s. Over the course of the appeal, the Veteran has been inconsistent in providing the exact date and location of his post-service treatment. At this juncture, the Board is satisfied the RO has made reasonable efforts to obtain these private medical records, and no further effort is required. 38 C.F.R. § 3.159(c). In this respect, the duty to assist is not a "fishing expedition." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). On a similar note, at the hearing, both the Veteran and his representative requested a VA examination to determine if any current right arm disorder was secondary to his service-connected wound residuals. See hearing testimony at page 7. However, the Board concludes that another VA examination and opinion is not necessary, as a prior January 2004 VA QTC examiner clearly opined that the Veteran's current right arm problems are not due to his service-connected stab wounds. This opinion was detailed, thorough, and supported by nerve conduction velocity (NCV) and electromyography (EMG) testing. There is no reasonable basis for the VA to secure a further examination and opinion, although the Veteran is always free to submit his own favorable evidence if he so desires. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to ascertain where he has had any additional relevant treatment at a VA facility since October 2005. Then obtain the records of any relevant medical treatment after October 2005, including records from the VAMC in Los Angeles, California. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. Contact the NPRC or other appropriate facility and attempt to obtain the Veteran's inpatient treatment for his stab wounds and possible "clinical" mental health counseling records from Travis Air Force Base Clinic in California and from the 121st Medical Evacuation Hospital in Seoul, South Korea. Both sets of records would be dated sometime between June 1974 and November 1974. Ensure this request specifically asks for inpatient and "clinical" records and is issued under the appropriate request code and directed to the correct facility. All attempts to secure these inpatient and "clinical" STRs must be documented in the claims file. Most importantly, if these records are unavailable or no longer exist, a negative reply to this effect is required from the NPRC. See 38 C.F.R. § 3.159(c)(2). 3. Request from the SSA records associated with the Veteran's disability claim(s) from the 1980s. Request copies of the disability determination and all medical records considered. If no records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 4. Send the Veteran a VCAA notice letter notifying the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate his service connection claim for PTSD. Specifically, with regard to PTSD, this letter should advise the Veteran that establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 5. Send the Veteran a VCAA notice letter notifying him and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate his service connection claim for an acquired psychiatric disorder claim (other than PTSD). This letter must advise the Veteran of what information or evidence that he should provide and what information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 6. As to the PTSD claim, schedule the Veteran for a VA mental health examination to determine the nature and etiology of any PTSD present. Prepare a summary of the following verified in- service stressor for the VA examiner to consider: Sometime between June and November of 1974 the Veteran was attacked with a razor at a night club in Seoul, South Korea, sustaining wounds to his right upper arm, chest, and neck. He claims he suffers from PTSD due to this stressor. Please note that the actual occurrence of this stressor during service has been already confirmed and verified. Advise the Veteran that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on his claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion responding to the following questions: (A) Does the Veteran have PTSD? (B) If so, is it at least as likely as not (meaning 50 percent or more probable) that the Veteran's PTSD is related to the verified in-service stressor discussed above? (C) If a diagnosis of a psychiatric disorder other than PTSD is made, it is requested that the examiner render an opinion as to whether it is at least likely as not (meaning 50 percent or more probable) that the disorder(s) is related to or caused by his military service. In making this determination, the examiner's attention is directed to the other currently diagnosed disorders in the record - e.g., schizophrenia, depression, psychosis (NOS), and drug and alcohol dependence. See VA treatment summary notes dated from 1994 to 2002; VA mental health treatment records from 2005; private and VA treatment records from the 1980s and 1990s. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 7. Then readjudicate the acquired psychiatric disorder issue, to include PTSD, as well as the right arm secondary service connection issue. If these claims are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ A. BRYANT 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).