Citation Nr: 1032946 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 05-01 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral leg condition. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served on active duty from September 1971 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2007, the Board remanded the Veteran's claims for further procedural and evidentiary development. In essence, the January 2007 Board remand instructed the agency of original jurisdiction (AOJ) to (1) contact the Veteran and ask that he provide any relevant information or evidence in his possession, and to specifically identify time frames for inpatient treatment during his military service as well as specific locations of past VA psychiatric treatment/hospitalization in South Dakota in the 1970s; and (2) obtain the Veteran's VA treatment records from various treatment facilities located in Michigan, Nevada and Indianapolis during specified time frames. The AOJ was then instructed to readjudicate the claim. In April 2007, the VA Appeals Management Center (AMC) sent the Veteran a letter seeking additional information. The letter also provided the Veteran with notice regarding what type of evidence was needed to substantiate his assertions. The AMC also sent letters to the designated VA medical treatment facilities in Michigan, Nevada, and Indianapolis requesting treatment records pertaining to the Veteran. As such, the Board finds that the RO completed the development requested in the January 2007 Board remand and complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO did obtain additional treatment records dated in January 1993 pertaining to treatment the Veteran received at a VA healthcare facility in Nevada, as well as updated VA treatment records dated from January 2005 to November 2006. The AMC subsequently readjudicated the claim in the January 2009 Supplemental Statement of the case (SSOC). The Board has herein recharacterized the Veteran's claim for service connection for anxiety disorder as a claim for service connection for an acquired psychiatric disorder, to better reflect the absence of clarity within the record as to the nature and extent of the Veteran's claimed disorder. It should be noted that in the Appellant's Informal Hearing Presentation, dated July 2010, the Veteran's representative asserts that the issue presented for review should be whether the Veteran is entitled to service connection for any acquired psychiatric disorder. Further, the Veteran's treatment records reflect that he has been diagnosed with a number of psychiatric disorders, including but not limited to, anxiety disorder, major depressive disorder, alcohol dependence, and possible PTSD. In a recent decision, the U.S. Court of Appeals for Veterans Claims (Court) held, with regard to a claim initially characterized as being for a specific psychiatric diagnosis, that a claim for service connection for one psychiatric disorder should be addressed as encompassing any other psychiatric disorder which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the present claim is essentially for any psychiatric disorder which presents itself upon development of the record. While the Board notes the RO's previous denial of the claim for service connection for anxiety disorder by its July 2004 rating decision, this decision only addressed the claim for benefits due to an anxiety disorder, not another acquired psychiatric disorder. In readjudicating the claim, the possibility of service connection for the other acquired psychiatric disorders must also be addressed. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Veteran claims that his acquired psychiatric disorder and bilateral leg condition are due to incidents and events which occurred during military service. Specifically, he maintains that he injured his left knee while he was in service, and began experiencing numbness, pain and an aching sensation a few months after having completed basic training. He maintains to have experienced a chronic type pain since his years in the military. See January 2004 claim. In the September 1971 examination conducted pursuant to his enlistment, the Veteran marked that he had experienced cramps in his legs in his report of medical history. However, the November 1974 separation examination showed the clinical evaluation of his feet and lower extremities to be normal, and the Veteran did not mark to suffer from cramps in his legs in his report of medical history. A VA treatment record dated in December 2003 notes the Veteran was referred for complaints of "numbness on both lo[w]er legs and pain in the [left] knee, weakness for many years since he left service." An X-ray of his legs was shown to be normal, however upon physical examination the Veteran had numbness in both his legs. Based on the physician's impression, the Veteran had a diagnosis of peripheral neuropathy. The January 2005 VA examination conducted pursuant to his non-service connected pension benefits indicates the Veteran has chondromalacia of the left knee, and the January 2005 VA treatment report reflects a diagnosis of arthritis in the Veteran's left knee. The more recent February 2006 VA treatment report reflects the Veteran's continued complaints of pain in his legs and diagnosis of chronic left leg pain. Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he was injured in service and has suffered pain in his legs since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In addition, based on the evidence submitted and testimony provided in support of his claim, the Board finds the Veteran credible with respect to his assertions. Turning to the Veteran's claim seeking service connected compensation for an acquired psychiatric disorder, the Veteran maintains that he has suffered from anxiety and depression since he was in the military, and was referred to a physician while in service for his anxiety. He asserts that his anxiety was severely exacerbated by stress imposed by a major in his command who he claims "was vindictive and...always harassing [him]...." See January 2004 claim. The Veteran further claims that during his period of service, he provided cooking services for the athletes at the Munich Olympics while stationed in Germany and was present when the 1972 Arab terrorist attacks took place, an event which has caused him to suffer from recurring nightmares and flashbacks. See December 2003 VA PTSD Screening and Outpatient Referral. The Veteran's DD 214 confirms the Veteran was stationed in Frankfurt, Germany from September 1971 to September 1973, and his military occupational specialty was that of cook. The Veteran's "depressed" and "tense" appearance and "distinct flattening of affect" was noted in the July 1972 clinical record, during which the Veteran was seeking treatment at sick call for his headaches. However, the November 1974 separation examination shows the clinical evaluation of his psychiatric state to be normal, and the Veteran did not mark to suffer from depression, excessive worry or nervous trouble of any sort in his report of medical history. VA treatment records dated as early as July-August 1979, reflect the Veteran sought treatment for his depression, anxiety, and anger. VA treatment records dated from 2001 to 2006 indicate the Veteran received continual treatment for his psychiatric conditions, and reflect multiple occasions during which the Veteran was admitted to treatment centers for rehabilitative and detoxification purposes. Tellingly, these treatment reports demonstrate the Veteran's multiple psychiatric diagnoses, including major depressive disorder, alcohol dependence, adjustment disorder with mixed mood, dysthymic disorder, and chronic anxiety. In December 2003, the Veteran was admitted to a VA treatment facility rehabilitation program for several weeks following a suicide attempt. During his course of treatment, he reported a recent onset of post traumatic stress disorder (PTSD) and discussed his in-service stressors, including the incident at the 1972 Munich Olympics, as well as an incident wherein he claimed to have "almost [been] snatched by a bunch of Arabs" while in the Army. The Veteran reported experiencing PTSD symptoms, in the form of nightmares, flashbacks, nightsweats, and "memories of those wars," and his January 2004 discharge summary reflected a possible diagnosis of post-traumatic stress disorder. During his January 2005 VA examination conducted pursuant to his claim for non service-connected pension benefits, the examiner noted that the Veteran "was present in Germany during the time when the Palestinian terrorists murdered the Israeli athletes, but he did not directly participate in that." The Board notes that the Veteran has not been afforded VA examinations in connection with his claims for a bilateral leg condition and acquired psychiatric disorder(s). VA has a duty to obtain an adequate medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; and indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, if VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate. Under the circumstances presented in this case, the Board finds that the Veteran has met the test established in McLendon. As discussed above, the Board has determined that the statements of the Veteran to the effect that he was injured in service and has suffered from chronic pain and numbness in his legs since service are competent and credible and his medical treatment records indicate he has multiple diagnoses with respect to his bilateral leg condition. Therefore, a medical examination is necessary to determine whether the Veteran's current bilateral leg condition is related to an in-service cause. With respect to his acquired psychiatric disorder(s), given the evidence of various psychiatric diagnoses and symptoms since the 1970s, and given his claimed in-service stressor(s) and the symptoms the Veteran displayed while in active service, the Board concludes that a VA examination by an examiner who has reviewed all the medical records in this case and who will render an opinion as to the likelihood that a current psychiatric disorder had its onset during active service is necessary to decide the claim. Also, during a February 2004 treatment visit, it was noted that the Veteran was planning to contact the Social Security Administration (SSA) to apply for social security benefits. However, there is no indication as to whether he did apply for benefits, and if so, whether his request for disability benefits has been granted or denied. Upon remand, the RO should ascertain whether the Veteran is in receipt of Social Security benefits. When VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Furthermore, the VCAA emphasizes the need for VA to obtain records from other government agencies. See 38 U.S.C.A. § 5103 (b)(3), (c)(3) (West 2002); 38 C.F.R. § 3.159 (c)(2) (2009). The RO should then request copies of the Veteran's SSA medical records used in the determination of benefits made by SSA. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the Veteran a notice letter in connection with his claim for an acquired psychiatric disorder, to include PTSD, which includes the information and evidence that is necessary to substantiate this aspect of the claim. The notice letter should inform the Veteran of the information needed in order to attempt to corroborate his alleged in- service stressor(s). The notice letter should also include a VA Form 21-0781, Statement in Support of Claim for Post Traumatic Stress Disorder, and the Veteran should provide as much detailed information regarding his claimed stressor(s) as he can recall. 2. The AMC/RO should request from the National Personnel Records Center (NPRC) or other appropriate source, the Veteran's entire Military Personnel File (OMPF). 3. The AMC/RO should determine whether the Veteran is in receipt of Social Security disability benefits. If so, the RO should obtain and associate with the claims file the decision of the Social Security Administration (SSA) to award disability benefits to the Veteran and the records upon which the SSA based its decision. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 4. After obtaining the records from the Social Security Administration, to the extent available, the Veteran should then be scheduled for a VA orthopedic examination for the purpose of ascertaining the nature and etiology of any leg condition (bilateral or unilateral.) The claims file and a copy of this REMAND must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in conjunction with the examination and opinions. All indicated tests should be performed and the findings reported in detail. Following a review of the record and an examination of the Veteran, the examiner should provide a response to the following: a. Specify the nature of any current leg condition (bilateral or unilateral), and provide diagnoses for all identified disabilities. b. Is it at least as likely as not that any of the diagnosed conditions are etiologically related to the Veteran's active service? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 5. After obtaining the records from the Social Security Administration and the Veteran's personnel records, to the extent available, the Veteran should be afforded a VA psychiatric examination for the purpose of determining the nature, extent, and etiology of any acquired psychiatric disorder, including PTSD, as a result of any claimed in-service stressor(s). The claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must indicate that the claims folder was reviewed. All necessary tests and studies, to include psychological testing, should be accomplished, and all clinical findings should be reported in detail. The examiner should elicit detailed information from the Veteran regarding the claimed in-service stressor(s), including information as to the type of involvement the Veteran had in the 1972 Munich Olympic terrorist attack, including what he experienced. The examiner must determine whether the claimed stressor is adequate to support a diagnosis of PTSD, and whether the Veteran's symptoms are related to the claimed stressor. A complete rationale should be provided for any opinion expressed. The examiner must also provide a diagnosis of any acquired psychiatric disorder(s), (other than PTSD), from which the Veteran suffers. For any such disorder, the examiner must opine as to whether it is at least as likely as not that the acquired psychiatric disorder(s) are the result of his exposure to the stressors in service, or otherwise related to his period of active duty, as opposed to being due to some other factor or factors. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 6. The AMC/RO should then readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2009). 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). _________________________________________________ MICHELLE L. KANE 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).