Citation Nr: 1031283 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 03-27 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 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 Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran had active duty service with the United States Coast Guard from April 1968 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied entitlement to service connection for PTSD, originally claimed as a nervous or panic disorder, depression, and/or PTSD in March 1998. The Board remanded the claim for additional development in March 2005 and September 2009. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2010; a transcript of that hearing is of record. In June 2010 the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated in June 2010 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2009). 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 As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), are applicable to this appeal. The Veteran was notified of the information needed to substantiate his claim for service connection for an acquired psychiatric disorder, to include PTSD, by the AMC in October 2005 and in November 2008. The Veteran clarified his contentions during a June 2010 videoconference hearing, asserting that he has PTSD or another psychiatric disorder as a result of flooding of the U.S. Coast Guard Cutter CACTUS during a hurricane or nor'easter in Bristol, Rhode Island around Christmas time in 1968. Sometime shortly after the storm, he avers that he was transferred to Coast Guard Cutter PABLO and was hospitalized at the Merchant Marine Hospital in Staten Island, New York after he was unable to go below the decks. He also described a mutiny on the CACTUS because the crew was angry about missing Christmas and being put in danger, but it apparently happened at a time the Veteran was not a crew member. A review of the records reflects that the Veteran served on the USCGC CACTUS no earlier than January 10, 1969. Prior to that time, following his initial training at the USGC Training Center, he was assigned to the USCGC SHERMAN from July 2, 1968 until October 20, 1968. Thereafter, he spent 20 days in the U.S. Naval Brig in Boston, Massachusetts, before he was transferred to a United States Public Hospital Service (USPHS) medical facility on November 21, 1968 where he remained until January 9, 1969. Thereafter, he served on the USCGC CACTUS from approximately January 10, 1969 until about May 1, 1969. There is no evidence that he served aboard the USCGC PABLO at any time. The Board notes that the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was recently relaxed, adding to the types of claims VA will accept through credible lay testimony alone. The new regulations provide that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. pt. 3). Here, the Veteran's lay testimony alone is insufficient to establish the occurrence of the claimed in-service stressor because he does not claim it was related to hostile military or terrorist activity. He claims he has PTSD after fearing he would drown in a flooding ship during a storm. The Veteran should also be afforded an additional VA PTSD examination to determine whether any current psychiatric disorder, to include PTSD, was caused or aggravated by events during military service. He was provided with a VA PTSD examination in December 2008, and the diagnosis included anxiety disorder not otherwise specified and bipolar disorder. However, the opinion rendered only addressed the relationship between his claimed PTSD and events in service. Another VA examination and opinion is required because there is some evidence of an anxiety disorder during service, a suggestion of a psychiatric disorder pre-existing service, and competent evidence of several psychiatric disorders after service. During the course of this appeal, the Court held that the scope of a VA disability claim for PTSD includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the Clemons decision, the issue on appeal is not just limited to the Veteran's purported entitlement to service connection for PTSD, but also includes any other psychiatric disorders that have been diagnosed as well. The issue on appeal has been recharacterized accordingly. Service personnel records reflect that the Veteran had disciplinary problems on multiple occasions beginning in August 1968, served time in the brig, and was reduced to an inferior pay grade. Service treatment records show that he denied any psychiatric problems during his enlistment examination in February 1968. He first complained of nervousness in November 1968 after getting out of the brig; the impression was acute anxiety. He was admitted to the hospital at Staten Island for a neuropsychiatric evaluation the next day. He described problems at home, including his parents' divorce, his father's immediate remarriage, and difficulty getting along well with step-brothers and his step-mother. He stated that he completed 10th grade and dropped out the next year, worked at various jobs for short periods, and joined the Coast Guard at age 18. The diagnosis was pre-existing, passive-aggressive personality disorder. He was discharged from the hospital fit for light shore duty pending discharge from the Coast Guard. In February 1969 he complained of nervousness again, and the impression was anxiety reaction. He was admitted to the hospital a second time for psychiatric evaluation in May 1969. The report again noted a "long history of emotional problems and an unstable family situation," stating that he "is the victim of a pathological family situation." The report also explained that the Veteran contested the November 1968 recommendation for separation and was allowed to remain on active duty; he "apparently got along satisfactorily until being re-assigned to sea duty, when his emotional and behavioral problems recurred." On examination, he was preoccupied with his inability to cope with the stress of Coast Guard duty and related his recent and past emotional problems to his chaotic family situation. The diagnosis was passive-aggressive personality and situational anxiety reaction with depressive features. Post-service VA treatment records reflect extensive treatment for psychiatric symptoms, including anxiety, depression, and an intolerance for being around water. The Veteran also provided a detailed family history in a March 1999 VA substance abuse intake note. He stated that his parents divorced when he was 10 years old, and he was physically abused by his mother, father, step- mother, and step-father. He reported that he was sexually abused by his step-brother at age 13 and started drinking alcohol at the same time. On VA examination, the examiner should obtain a comprehensive psychosocial history from the Veteran, including reports of childhood physical and sexual abuse, and opine whether the Veteran likely had a pre-existing psychiatric disorder that was aggravated by events during military service. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA that treated him for any psychiatric disorders. Of particular interest are VA treatment records from August 2003 to the present. 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 the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Following receipt of any additional VA or private treatment records, as well as the completion of any additional development deemed necessary, the Veteran should be afforded an appropriate VA examination (PTSD or mental disorders) and opinion performed by a psychiatrist at a VA facility. The purpose of the examination and opinion is to determine whether the Veteran has a current psychiatric disorder, to include PTSD that was caused or aggravated by events during military service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the psychiatrist performing the examination for a thorough review of the case. The psychiatrist should be provided with a complete copy of this remand and the accompanying instructions. A notation to the effect that this thorough record review took place should be included in the report of the psychiatrist. The psychiatrist must obtain a comprehensive history from the Veteran that includes his pre-service history of childhood physical and sexual abuse and in-service complaints of anxiety and reported flooding of the Coast Guard Cutter CACTUS After reviewing the record and examining the Veteran, the psychiatrist is asked to provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder, including any diagnosed PTSD, was caused or aggravated by events during military service. The opinions should be provided based on the results of examination, a review of the medical and lay 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. If the examiner concludes that he or she cannot render an opinion without resorting to mere speculation without providing a complete rationale for such a conclusion, the examination will be deemed inadequate and the case will be returned for an additional VA examination and opinion. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must 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 claim. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal 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 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). _________________________________________________ RENÉE M. PELLETIER 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).